Iannello & Iannello
[2018] FCCA 3528
•12 December 2018
FEDERAL CIRCUIT COURT OF AUSTRALIA
| IANNELLO & IANNELLO | [2018] FCCA 3528 |
| Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoena – where the Husband issued a subpoena seeking information of the telephone records of the Wife – purported purpose of subpoena is to demonstrate that Husband had primary care of the children during the relationship – amount of time each parent spends with the children does not define the nature of the relationship with the children – held that subpoena issued for an improper purpose and is an abuse of process – where the Wife issued a subpoena seeking information from the Husband’s solicitors in relation to the Husband’s injury – conceded by Wife that many documents relating to Husband subject to legal professional privilege – orders made for an affidavit from partner of law firm rather than subpoena of documents. |
| Legislation: Family Law Act 1975, pt.VII, ss.60B, 60CA, 60CA, 60CC, 65DAA |
| Cases cited: Blann & Blann (1983) FLC 91-322 |
| Applicant: | MS IANNELLO |
| Respondent: | MR IANNELLO |
| File Number: | MLC 3008 of 2018 |
| Judgment of: | Judge C. E. Kirton QC |
| Hearing date: | 13 August 2018 |
| Date of Last Submission: | 13 August 2018 |
| Delivered at: | Melbourne |
| Delivered on: | 12 December 2018 |
REPRESENTATION
| Counsel for the Applicant: | Ms Smallwood |
| Solicitors for the Applicant: | Marshalls & Dent & Wilmoth Lawyers |
| Counsel for the Respondent: | Ms Brennan |
| Solicitors for the Respondent: | KHQ Lawyers |
| Solicitors for the Independent Children's Lawyer: | Ms Kourtis, McKean Park Lawyers |
ORDERS
The subpoenas filed by the Respondent on 21 June 2018 and 7 August 2018 addressed to The Proper Officer, Telstra Corporation Limited, Level 41, 242 Exhibition Street, Melbourne be set aside.
In response to the subpoena filed by the Applicant on 6 August 2018 addressed to The Proper Officer, Maurice Blackburn, Level 21, 380 La Trobe Street (Maurice Blackburn Subpoena):
(a)Within 28 days from the date of this Order the Respondent file and serve an affidavit from the partner at Maurice Blackburn who has the conduct of the Respondent’s compensation claim arising out of the injury suffered by the Respondent on or about October 2012, deposing to the following matters:
(i)When the compensation claim was commenced and the jurisdiction or jurisdictions commenced in;
(ii)The amount of moneys paid to the Respondent to date, when the moneys were paid, what the moneys were received for and from whom and how they were disbursed;
(iii)The stage the compensation claim is presently at;
(iv)The likelihood of further payments to the Respondent, what such payments would be for, when the Respondent is likely to receive further moneys and the amount.
(v)Annexing all reports in relation to any claim for of any kind arising out of the injury suffered by the Respondent on or about October 2012.
(b)That the Maurice Blackburn Subpoena is otherwise set aside.
The parties’ costs be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Iannello & Iannello is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 3008 of 2018
| MS IANNELLO |
Applicant
And
| MR IANNELLO |
Respondent
REASONS FOR JUDGMENT
Introduction
This matter was commenced by the Applicant Wife (Wife) on 20 March 2018. This was the fourth occasion since the matter commenced that these parties have been before the Court. The matter was listed at 9.00am on 13 August 2018 so that the Court could determine a further dispute that had arisen between the parties. This dispute concerned objections to subpoenas issued by both the Respondent Husband (Husband) and the Wife (Subpoena Dispute).
Orders were pronounced on 13 August 2018 and the parties were advised that written Reasons for Judgment would be delivered. These are the Reasons for Judgment in relation to the Subpoena Dispute.
Background
The parties married on [date] 2004.
The parties separated under one roof in April 2017. Final separation occurred on 27 February 2018 when the Wife left the matrimonial home after a dispute in which the police were involved. She moved into her parents’ home, which is located close to the former matrimonial home.
The parties have two children: [X] born on [date] 2005, now aged 13 and [Y] born on [date] 2008, now aged 10 (Children).
On [date] 2012 the Husband suffered a workplace accident. The Husband has deposed that he sustained a cognitive impairment from this accident. The Husband has not been in paid employment since [date] 2013, now a period of over 5 years. The Husband has deposed that since his workplace accident he has been medically assessed as unfit to work due to the impact of the accident on his mental capacity. The Husband says that this assessment has been recently confirmed by Dr A in a report dated 26 June 2018[1]. This report by Dr A is not before the Court.
[1] Husband’s Affidavit, filed 28.6.18, at [4].
The Husband was born on [date] 1964 and is aged 54. The Wife was born on [date] 1981 and is aged 37.
Sometime after the Husband’s accident, the Wife assumed the role of the family’s principal income earner. The Wife now works as a [occupation omitted] at the [employer omitted].
The Children remained living with the Husband after the Wife left the former matrimonial home on 27 February 2018. The parties were unable to reach an agreement in relation to the time that the Children were to spend with the Wife. Consequently on 4 May 2018, the Court ordered that the Children live with the parties on a week about basis, commencing from 4 May 2018.
On 4 May 2018 it was also ordered that the parties attend upon Ms B on 5 June 2018 for the purpose of the preparation of a family report. Subsequently, due to unforeseen circumstances, Ms B became unavailable and the appointment was rescheduled to 11 September 2018.
Telstra Subpoenas
The Husband’s solicitors filed a subpoena on 21 June 2018 addressed to the Proper Officer, Telstra Corporation (First Telstra Subpoena). The documents were to be produced to the Registry by 5 July 2018.
The documents sought to be produced pursuant to the First Telstra Subpoena are as follows:
2. For the period 1 July 2016 to present:
(a)All telephone records for the telephone number [omitted] including all invoices rendered, all incoming and outgoing call and SMS text records, including the location from which each call/text was made or received; and
(b)All other information relating to the geolocation of the telephone with regard to the mobile telephone towers during this period.
The Wife’s solicitors filed a Notice of Objection – Subpoena on 3 July 2018. Production of the documents was objected to on the following basis:
Objection is taken to the production of the documents sought on the basis that the documents have no apparent relevance to the proceeding and, in the alternative, the request constitutes fishing and amounts to an abuse of process.
Inspection of the documents was objected to on the following basis:
Objection is taken to inspection by the Husband and to copying of all documents in connection with the mobile phone account [omitted] on the basis that the information contained within those documents is confidential to the customers of the Wife’s employer.
The Husband’s solicitors filed a second subpoena on 7 August 2018 addressed to the Proper Officer of the Telstra Corporation (Second Telstra Subpoena). The documents were sought to be produced to the Registry by 21 August 2018. The documents sought to be produced pursuant to the subpoena) are the same categories of documents as the First Telstra Subpoena but relate to mobile phone number [omitted]. The documents sought to be produced are for the same period as the First Telstra Subpoena, being from 1 July 2016 to the present.
In a letter dated 5 July 2018 from the Husband’s solicitors to the Wife’s solicitors, the Husband’s solicitors wrote:
We note that your client has filed a Notice of Objection to subpoena. It is our view that the subpoena to Telstra is highly relevant to the current issues before the Court as the records will identify your client’s location and the time that she has spent at work.
This is directly related to her previous assertions in Affidavit that she has had shared care of the children in circumstances where it is our client’s position that he had primary care of the children during the relationship, and your client spent long hours at the office.
We otherwise confirm that the Telstra records are likely to be of great length, and it is not practical or cost-effective that these be released on an inspection only basis. This being the case, we confirm we will seek for the documents will (sic) to be copied[2].
[2] Husband’s Affidavit, filed 31.7.18, Annexure “JRI-03”.
Maurice Blackburn Subpoena
The Wife’s solicitors filed a subpoena on 6 August 2018 addressed to The Proper Officer, Maurice Blackburn (Maurice Blackburn Subpoena). The documents were to be produced to the Registry by 20 August 2018.
The documents sought to be produced pursuant to the Maurice Blackburn Subpoena are as follows:
All files, records, correspondence, emails, file notes, other notes, reports, memoranda, drafts and any other document constituting instructions, advice or records in relation to… any claim for compensation of any kind arising out of the injury suffered on or around [date] 2012 by [the Husband].
The Husband’s solicitors filed a Notice of Objection – Subpoena on 10 August 2018. Production of the documents was objected to on the following basis:
[…] that some of the documents, namely emails, file notes, notes, drafts, and instructions provided by the Respondent are privileged and confidential, particularly the correspondence between the Respondent’s solicitors, KHQ Lawyers, and Maurice Blackburn, and instructions provided by the Respondent to Maurice Blackburn.
In the alternative, the request for emails, file notes, other notes, draft and instructions provided by the Respondent constitutes fishing, amounts to an abuse of process and is oppressive due to the size of the file noting that Maurice Blackburn has been acting for the [Respondent] client since 2013.
Counsel for the Wife’s Submissions
Telstra Subpoenas
Counsel for the Wife submitted that both the First Telstra Subpoena and the Second Telstra Subpoena (Telstra Subpoenas) should be struck out.
It was submitted by Counsel for the Wife that the information sought in the Subpoenas was not relevant to the proceeding and served no forensic purpose in relation to the welfare of the Children. The Wife has deposed that she was a shared carer of the Children. The Husband has deposed that he was the primary carer and that Wife worked long hours. Counsel for the Wife submitted that the relevant depositions the Wife has made in this regard are:
a)In her first affidavit[3]:
[The Husband] has proposed that the children live with him and with me from Friday evening to Monday morning each alternate weekend and for dinner once per week. He suggests this is consistent with his role as the primary carer. [The Husband] is a loving and attentive father, but I dispute that characterisation. The children are 12 and 9 and spend the large part of each day at school and extra-curricular activities. It is rare that the children are home when I am not[4].
b)In her second affidavit[5]:
As to paragraph 5, I deny that [the Husband] is, or was, the primary carer for the children. The children are 13 and 9. They spend the large part of each day at school and at extra-curricular activities. It was rare that the children were at home when I was not. After physical separation [the Husband] refused to permit me to care for the children, asserting my work precludes me from doing so. We had, prior to that time, shared their care, each attending to their needs when they arose[6].
[3] Wife’s Affidavit, filed 20.3.18.
[4] Ibid., at [25].
[5] Wife’s Affidavit, filed 2.5.18.
[6] Ibid., at [7].
It was submitted by Counsel for the Wife that the concept of shared care was not one of measuring or weighing up time spent with the Children.
Counsel for the Wife also submitted that the information sought in the Telstra Subpoenas could not prove that the Children were in fact home when the Wife was not there. It was also argued that the Telstra records do not themselves constitute evidence and that a representative from Telstra would have to be called to give evidence.
It was submitted that the real purpose of the Telstra Subpoenas was so that the Husband could delve into the Wife’s life. The subpoenas sought records from 1 July 2016. Counsel for the Wife submitted that the Husband had been profoundly critical of the Wife, her role in the workforce, of her partying and of her going to nightclubs. The subpoenas could not therefore stand if they were for an improper purpose such as harassment. Counsel for the Wife relied upon National Employers’ Mutual General Insurance Association Ltd v Waind & Hill[7] and Blann & Blann[8].
[7] [1978] 1 NSWLR 372.
[8] (1983) FLC 91-322.
The Second Telstra Subpoena refers to the mobile phone number [omitted] which is the Wife’s work mobile. Counsel for the Wife submitted that the records for this work number would refer to the telephone numbers of many clients of the [employer omitted]. It was submitted that it was improper to seek to obtain information about another person that was not relevant to the proceeding. The Second Telstra Subpoena would include private information about many other people and include all of the Wife’s clients over the period from 1 July 2016. It was submitted that the Second Telstra subpoena was for a spurious purpose and could not be relevant to the proceeding.
Maurice Blackburn Subpoena
Counsel for the Wife noted that many of the documents sought by the Maurice Blackburn Subpoena would be the Husband’s instructions to Maurice Blackburn and correspondence from Maurice Blackburn with legal advice to the Husband. Counsel conceded that as the Husband had maintained a claim for legal professional privilege, these documents could not be sought to be produced by the Maurice Blackburn Subpoena.
Counsel submitted that what was sought was all documents or correspondence to the Husband from Maurice Blackburn notifying him of any moneys, enclosing any moneys or disbursing any moneys to him. Counsel submitted that the Husband had previously deposed in this proceeding that he had no money, when in fact it has been discovered by the Wife’s solicitors that he had $161,000 in a bank account. Counsel submitted that the Wife’s solicitors have not received any discovered documents in relation to the payment of this $161,000 or any other moneys to the Husband from Maurice Blackburn.
It was submitted that in these circumstances the Wife did not know the basis that this sum of $161,000 had been paid to the Husband. It had been suggested by the Husband to the Wife that this money was either a Work Care payment or an insurance payment associated with superannuation. It was submitted that in circumstances where the Husband has paid $100,000 of this money to his solicitors and was now seeking to be paid spousal maintenance, the characterisation of this payment was significant.
Counsel submitted that the proper course would be for the Husband to instruct the solicitor at Maurice Blackburn with the conduct of his personal injury claim to make an affidavit that included relevant information in relation to the Husband’s compensation claim. This information should include: the stage the claim was at, the claims the Husband has in the future, the amount of any moneys previously received by the Husband, when the money was received, how the money was disbursed, an explanation of what the money was received for, the likelihood of further payments to the Husband and the amount, and when the Husband is likely to receive any further moneys.
Counsel for the Wife submitted that her instructing solicitors would prefer to receive an affidavit from Maurice Blackburn with this information in it rather than having to peruse a large volume of documents.
Counsel for Husband’s Submissions
Telstra Subpoenas
Counsel for the Husband advised that an error had been made in the preparation of the First Telstra Subpoena and that the mobile number [omitted] was incorrect. The Husband’s Counsel sought to rely instead upon the mobile number referred to in the Second Telstra Subpoena, being [omitted]. The Husband’s Counsel therefore sought to proceed only with the Second Telstra Subpoena.
Counsel for the Husband submitted that it had been the Husband’s case from the commencement of the proceeding that he had filled the role of primary carer for the Children.
Counsel for the Husband submitted that the relevant depositions that the Husband had made in this regard were in his second affidavit[9], as follows:
a) I say that Ms Iannello’s comments regarding her involvement with the children are exaggerated and false. I admit that the children do attend significant extra-curricular activities, including [sports] 5 nights a week, and it has been me that has predominantly taken them to these activities, and to and from school, not Ms Iannello. If necessary her mobile phone records will verify that she was often working late, during our marriage, and that her involvement with the children was primarily during weekends, when she was not working, or otherwise attending at her gym[10].
b)If necessary Ms Iannello’s mobile phone records will verify that she was often working long hours during our marriage, and that her involvement with the children was primarily during weekends, when she was not working, or otherwise attending at her gym[11].
c) I do not accept that Ms Iannello now suddenly has workplace flexibility, as this is not something she has utilized previously[12].
[9] Husband’s Affidavit, filed 4.5.18.
[10] Ibid., at [6].
[11] Ibid., at [21.a].
[12] Ibid., at [21.c].
To limit the scope of the Second Telstra Subpoena so that it would be relevant and also have a proper purpose, Counsel for the Husband proposed that it be limited so that the records were produced with all the phone numbers and text messages redacted.
It was submitted by Counsel for the Husband that by redacting the phone numbers and text messages, all that the records produced by the Second Telstra Subpoena would reveal was the geographical location of the Wife over a period of time. It was argued that this avoided any argument that there was any form of harassment of the Wife because all the records would show was where the Wife was and the time that she was in that geographical location.
Counsel for the Husband therefore sought to amend the Second Telstra Subpoena to read:
2. For the period 1 July 2016 to present:
(a)All telephone records for the telephone number [omitted], including the location from which each call/text was made or received; and
(b)All other information relating to the geolocation of the telephone with regard to the mobile telephone towers during this period.[13]
[13] Transcript T:6[40]-7[45].
Counsel for the Husband submitted that the Telstra records would support the Husband’s case that he has always fulfilled the role of primary carer for the Children. Counsel submitted that the Husband does not accept that now the Wife has adopted flexible working hours, that she was working flexible hours when the Children were with her. It was submitted that the Telstra records would go a long way towards explaining that the Husband was the one who was there to promote the needs of the Children, not the Wife. It was also contended by Counsel for the Husband that the Telstra records would go a long way to explain the Wife’s attitude to the responsibilities and obligations of parenthood.
Maurice Blackburn Subpoena
Counsel for the Husband submitted that the Maurice Blackburn Subpoena was clearly too wide. She was instructed that the file held by Maurice Blackburn was voluminous as it covered a period from 2013 and it remained ongoing because of difficulties with the neuro- physiological evidence which was not yet settled.
As the Maurice Blackburn Subpoena was being limited to information relating to payments to the Husband, it was no longer objected to by the Husband. Counsel for the Husband submitted that the Court should order the Husband to obtain an affidavit from the partner at Maurice Blackburn who had the conduct of the Husband’s personal injury file. Counsel submitted that documents would also be produced with the affidavit but they would need to be redacted if they contained any reference to instructions or advice received by the Husband from his lawyers.
Submissions by Independent Children’s Lawyer
Telstra Subpoena
The Independent Children’s Lawyer (ICL) submitted that from the affidavit material the parties separated in April 2017 and lived separated under the same roof until February 2018. Therefore seeking the records from July 2016 would encompass the last eight months of the relationship plus the period that the parties were separated under the same roof. It was submitted that there might be some differentiation between each of the parties’ involvement with the Children in these circumstances.
Maurice Blackburn Subpoena
The ICL submitted that it was conceded that the Husband has a cognitive impairment. However there was no evidence before the Court about what that impairment was. The ICL submitted that the Husband’s condition had relevance to the parenting proceedings and she described the failure to provide evidence of the Husband’s condition as a “glaring omission from the material”.[14]
[14] Transcript T:14[3-4].
The ICL submitted that the Maurice Blackburn Subpoena sought all reports that had been prepared in relation to the Husband’s claim for compensation. The ICL submitted that these should be produced as they had relevance in relation to the parenting proceeding. It was submitted that any privilege had been waived by the Husband in relation to these reports, as the reports had been referred to in a recent report by Dr A, which had been sent to the parties but was not before the Court.
Further Submission by Counsel for Wife and Husband – Maurice Blackburn Subpoena
Counsel for the Wife noted that on 4 May 2018 the Court had ordered that the Husband was to provide by 5 June 2018:
7 […] a completed cognitive report and the consolidated report prepared in 2017 shall be sufficient and such report be made available to Ms B.[15]
[15] Order 7 of the Orders made on 4 May 2018.
Counsel for the Wife submitted that the Husband had not produced the 2017 cognitive report pursuant to the 4 May 2018 Orders and had instead obtained a different report by Dr A.
Counsel for the Husband advised that the report prepared by Dr A was a comprehensive document that included reference to the Husband’s previous medical assessments and the conclusions reached from those assessments. Counsel for the Husband conceded that as the report for Dr A had referred to the previous assessment reports, any privilege in the previous assessment reports had been waived by the Husband.
It was therefore agreed by Counsel for the Husband that the Maurice Blackburn Subpoena would be answered by way of an affidavit from the partner at Maurice Blackburn who had the conduct of the Husband’s compensation claim. The affidavit would annex the assessment reports that the Husband had undertaken in relation to his compensation claim and also depose to information in relation to payments made to the Husband. Orders were made in accordance with this agreed position.
I now turn to consider the Second Telstra Subpoena.
Consideration
The Husband seeks to use information relating to the geographical location of the Wife to demonstrate that he had:
[…] primary care of the children during the relationship, and [the Wife] spent long hours at the office[16].
[16] Letter from Husband’s solicitors to Wife’s solicitors, 5.7.18, Husband’s Affidavit, filed 31.7.18, Annexure “I-03”.
Before the Court can make final parenting orders relating to where the Children live, the Court must consider the relevant statutory provisions in the Family Law Act 1975 (Cth) (Act).
Part VII of the Act contains the relevant provisions concerning children. Section 60B of the Act sets out the objects of Part VII and the principles underlying it.
Section 60CA of the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out how the Court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in sub-s.(2) are primary considerations and the matters set out in sub-s.(3) are additional considerations.
Section 60CC(2) sets out the two primary considerations that the Court must take into account in determining what is in a child’s best interests. Section 60CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
In Mazorski & Albright[17]Brown J considered the definition of “meaningful” in the context of “meaningful relationship”. Her Honour said:
26. I proceed on the basis that when considering the primary considerations and the application of the object and principles, a meaningful relationship or a meaningful involvement is one which is important, significant and valuable to the child. It is a qualitative adjective, not a strictly quantitive one. Quantitive concepts may be addressed as part of the process of considering the consequences of the application of the presumption of equally shared parental responsibility and the requirement for time with children to be, where possible and in their best interests, substantial and significant.
[17] [2007] FamCA 520.
Her Honour’s conclusions in paragraph 26 were approved by the Full Family Court in Moose & Moose[18]. In McCall & Clark[19] the Full Family Court again considered the concept of “meaningful relationship”. In that case the Full Court said:
109 The Act does not contain a definition of “meaningful”, nor does it provide any specific criteria to assess how parents either have, or should have, a “meaningful involvement” in a child’s life. It does not give guidance to the interpretation of the phrase “meaningful relationship”[20].
[18] (2008) FLC 93-375, at [69] (May, Boland and O’Reilly JJ).
[19] (2009) FLC 93-405. (Bryant CJ, Faulks DCJ and Boland J).
[20] Ibid., at [109]
When considering the benefit to the child of having a meaningful relationship with both of the child’s parents, the Full Family Court in McCall & Clark considered three possible interpretations of s.60CC(2)(a) as follows:
118 It appears to us that there are three possible interpretations of s 60CC(2)(a):
a) one interpretation is that the legislation requires a court to consider the benefit to the child of having a meaningful relationship with both of the child’s parents by examination of evidence of the nature of the child’s relationship at the date of the hearing, to make findings based on that evidence, which findings will be reflected in the orders ultimately made (“the present relationship approach”);
b) a second interpretation is that the legislature intended that a court should assume that there is a benefit to all children in having a meaningful relationship with both of their parents “the presumption approach”); and
c) the third interpretation is that the court should consider and weigh the evidence at the date of the hearing and determine how, if it is in a child’s best interests, orders can be framed to ensure the particular child has a meaningful relationship with both parents (“the prospective approach”).
119. We conclude that the preferred interpretation of benefit to a child of a meaningful relationship in s 60CC(2)(a) is “the prospective approach” although, depending upon factual circumstances, the present relationship approach may also be relevant. We note however that s 60CC(3)(b) requires a court to explore existing relationships between a child and his or her parents and other persons, including grandparents. If the interpretation we have set out in (a) above were exclusively applied, that interpretation would limit a court making appropriate orders in circumstances where a significant relationship had not been established between a child and a parent at the date of trial.
In arriving at its conclusions the Full Court accepted as appropriate the interpretation of “meaningful relationship” as set out by Brown J in Mazorski & Albright[21].
[21] [2007] FamCA 520.
Therefore the Court is required pursuant to s.60CC(2)(a) to make appropriate orders to ensure that the Children have a “meaningful relationship” with both parents. In accordance with Brown J’s interpretation of “meaningful relationship” in Mazorski & Albright, the Court will consider orders that facilitate the Children having a relationship with each of the Husband and the Wife that is “important”, “of consequence” and “valuable”[22]. This is a qualitative assessment.
[22] Ibid., [26].
The purpose of the Second Telstra Subpoena is prove that the Wife was “often working long hours” and that:
“[…] her involvement with the children was primarily during weekends, when she was not working, or otherwise attending at her gym”[23].
[23] Husband’s Affidavit, filed 4.5.18, at [21.a].
This attempt at a quantitive assessment of the time the Wife was working late or at the gym will not assist the Court in determining the orders to be made pursuant to s.60CC(2)(a). The Court is to take a prospective approach to the inquiry, as indicated by the Full Court of the Family Court in McCall & Clark[24].
[24] (2009) FLC 93-405, at [119].
In determining what is in the child’s best interests for the purposes of s.60CC(1), the Court must also take into account the additional considerations in s.60CC(3)(a) to (m). The relationship between the child and each of his or her parents (s.60CC(3)(b)(i)) is one of a number of the additional considerations.
In this proceeding both the Husband and the Wife seek final orders for equal shared parental responsibility for the Children. The parties are in agreement on this issue.
Where the parents have equal shared parental responsibility for a child, sub-ss.(1)-(5) inclusive of s.65DAA of the Act requires the Court to consider the child spending equal time, or a substantial and significant time, with each parent. Subsection 65DAA(1) provides as follows:
Equal time
(1) Subject to subsection (6), if a parenting order provides (or is to provide) that a child’s parents are to have equal shared parental responsibility for the child, the court must:
(a) consider whether the child spending equal time with each of the parents would be in the best interests of the child; and
(b) consider whether the child spending equal time with each of the parents is reasonably practicable; and
(c) if it is, consider making an order to provide (or including a provision in the order) for the child to spend equal time with each of the parents.
Consequently, the Court is required to first consider making orders for the Children to have equal time with each of the parents. It is only if the Court considers that an order for equal time is not in the Children’s best interest and reasonably practicable that the Court is required to then consider orders for substantial and significant time pursuant to s65DAA(2).
The Wife’s Initiating Application[25] seeks interim and final orders that the Children live with the parties on an equal shared care basis, with changeover to occur at the conclusion of school each Friday.
[25] Wife’s initiating Application, filed 20.3.18.
The Second Telstra Subpoena was filed before the family report by Ms B, which was ordered on 4 May 2018, became available to the parties. A family report provides relevant information for the purposes of the primary and additional considerations in ss.60CC(2) and (3) of the Act.
The Second Telstra Subpoena is misconceived because the amount of time the Husband or Wife spends with the Children does not define the nature of the relationship with each of the Children.
The Second Telstra Subpoena is misconceived because any information obtained will not prove that the Children were at home when the Wife was not there. It will not prove that the Husband was home when the Wife was not there. It will not prove what the Husband was doing at home. The evidence it would produce would not be relevant for the purposes of ss60CC(2) and (3). It would serve no forensic purpose for the assessment of the considerations in ss.60CC(2) and (3) of the Act.
In my view the Husband has failed to demonstrate a legitimate forensic purpose for the Second Telstra Subpoena. A party at whose request a subpoena is issued must identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought: R v Saleam[26]; R v Mokbel (Ruling No.1)[27]. Where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the subpoena: R v Saleam[28].
[26] (1989) 16 NSWLR 14.
[27] [2005] VSC 410, at [44]-[45].
[28] (1989) 16 NSWLR 14, at [18].
The Husband in his affidavits has been very critical of the Wife, in particular, her role in the workforce. The Husband also deposes to:
a)The Wife’s “active social life with her friends” on weekends when she was “often meeting them for meals or coffee”[29].
b)Noticing from the Wife’s Uber receipts “that she also attended nightclubs…and was out until late at night” whilst he was travelling overseas[30].
[29] Husband’s affidavit, filed 23.4.18, at [14].
[30] Ibid., at [17].
The Wife has deposed that whilst the parties lived separated under the one roof on 20 July 2017 the Husband:[31]
(a) accessed my Uber receipts by looking at my phone at approximately 2:36am, without my knowledge. He took screenshots of text messages and Uber receipts and sent them to himself. I know this because I saw messages he had sent to himself from my phone; and
(b) also deleted a separate chain of text messages between us in which he had used abusive language towards me.
[31] Wife’s Affidavit, filed 2.5.18, at [36].
The Wife has deposed that after separation on 28 April 2018, the Husband posted a comment on Facebook admitting to accessing Uber records on her mobile phone. The Facebook post is annexed to the Wife’s affidavit and shown to her by a friend[32]. The Facebook post states:
The other suspect thing is when the phone is so clean of activity. I found the Uber App activity is interesting, especially when you’re away for a month. That and turning the home security cameras off for that month when they’d been running for 2 years previously. The obvious stuff like getting on with a random guy at party was too obvious. Who needs an article? [33]
[32] Ibid, at [37] and Annexure “I-4”.
[33] Loc. cit.
The information sought in the Second Telstra Subpoena is for the period from “1 July 2016 to [the] present”. This period covers:
a)Ten months prior to the parties separating under the one roof from 1 July 2016 to April 2017.
b)Ten months whilst the parties lived separated under the same roof until final separation from May 2017 to 28 February 2018.
c)For six months post-separation from March 2018 until the hearing of the Subpoena Dispute on 13 August 2018.
At an interim hearing the Court is faced with competing claims made in affidavits. It is not until the final hearing that all the evidence can be tested, evaluated and weighed. However after reading the Husband’s affidavits[34] and taking into account his previous behaviour referred to in paragraphs 76 and 77, I am of the view that the Husband intends to use the information obtained from the Second Telstra Subpoena to inquire into the Wife’s life. I am of the opinion that the Husband is intending to try to find out more information than what time the Wife arrived home from work each night. This is an improper purpose and an abuse of process. In National Employers’ Mutual General Association Ltd v Waind and Hill[35] the New South Wales Court of Appeal held that:
Thus, it would be an improper use of the subpoena if it were not sought for the purpose of the litigation, but for some spurious purpose, such as to inspect the documents in connection with other proceedings, or for some private purpose…[36]
[34] Husband’s affidavits, filed 23.4.18, 4.5.18, 28.6.18 and 31.7.18.
[35] [1978] 1 NSWLR 372.
[36] Ibid., at 382.
The Court has an inherent jurisdiction to prevent abuse of its process: Blann & Blann[37]. I am satisfied that the Second Telstra Subpoena Telstra is not a legitimate use if this Court’s process. I therefore have made orders setting it aside.
[37] (1983) FLC 91-322, at 78, 185.
Conclusion
The Wife’s Counsel conceded that many of the documents sought pursuant to the Maurice Blackburn Subpoena were subject to legal professional privilege. The parties preferred to receive an affidavit from the partner at Maurice Blackburn who has the conduct of the Husband’s compensation claim, rather than the production of voluminous documents. Orders have been made accordingly.
I have made orders setting aside the First Telstra Subpoena on the basis that the Husband was not proceeding with this subpoena due to an error in the preparation of the subpoena.
I have made orders setting aside the Second Telstra Subpoena for two reasons. Firstly, because the Husband has failed to demonstrate a legitimate forensic purpose for the subpoena. Secondly, because I have determined that it has been issued for an improper purpose and is an abuse of process.
I certify that the preceding eighty (80) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 12 December 2018
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