Janco & Riordan
[2023] FedCFamC1A 121
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Janco & Riordan [2023] FedCFamC1A 121
Appeal from: Janco & Riordan [2023] FedCFamC2F 470 Appeal number(s):
NAA 101 of 2023
File number(s):
CAC 1057 of 2021
Judgment of:
CHRISTIE J
Date of judgment:
3 August 2023
Catchwords:
FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – Appeal in relation to parenting orders – Where the appellant seeks leave to issue subpoenas – where the request is in aid of a forthcoming application to adduce further evidence – Where the appellant seeks leave to issue subpoenas to two police entities – Where the documents sought to be produced under subpoena are neither necessary, appropriate nor able to demonstrate error on the part of the primary judge – Where the appellant seeks leave to issue subpoenas to the child’s former day-care centre, current school and relevant health services – Where the appellant is unable to demonstrate that the documents which she seeks to obtain via leave to issue subpoenas are documents that should be before the Court on appeal to demonstrate error on the part of the primary judge – Leave refused.
Legislation:
Family Law Act 1975 (Cth) s 93A
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 172
Hardwick & Hardwick [2022] FedCFamC1A 179
Number of paragraphs:
43
Date of hearing:
Determined in chambers in the absence of parties without oral hearing by consent
Place:
Melbourne
ORDERS
NAA 101 of 2023
CAC 1057 of 2021FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MS JANCO
Applicant
AND: MR RIORDAN
Respondent
INDEPENDENT CHILDREN’S LAWYER
order made by:
CHRISTIE J
DATE OF ORDER:
3 AUGUST 2023
THE COURT ORDERS THAT:
1.The appellant’s application for leave to issue subpoenas is dismissed.
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 a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
CHRISTIE J:
This is an Application in an Appeal filed by the appellant, Ms Janco, seeking leave for the court to issue subpoenas.
On 28 March 2023, the primary judge made orders and delivered reasons in a parenting matter between the appellant and the respondent.
On 26 April 2023, the appellant filed a Notice of Appeal against those orders.
On 27 July 2023, the appellant sought leave to issue subpoenas in aid of a foreshadowed application for leave to adduce further evidence on the appeal. An application to adduce further evidence on appeal has not as yet been filed.
The parties have provided their consent for the application for leave to be determined in the absence of the parties without an oral hearing. The appellant relies on a letter comprising two pages in support of her application for leave.
The substantive appeal is presently listed for determination on 5 September 2023.
THE LAW
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).
In determining an application for leave it is necessary to have regard to the reasons for judgment and the Notice of Appeal in order to assess whether the subpoenas sought to be issued are likely to produce documents which in due course would be accepted as further evidence on the basis that they demonstrate error on the part of the primary judge.
As set out in s 35 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“FCFCOA Act”) this 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.
The exercise of that discretion was the subject of consideration by the High Court in CDJ v VAJ (1998) 197 CLR 172 (“CDJ”) where that Court was being asked to consider s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”). While s 93A(2) of the Act has been repealed, s 35 of the FCFCOA Act replicates its relevant terms.
In considering s 93A(2) the majority in CDJ (as set out in Hardwick & Hardwick [2022] FedCFamC1A 179 at [11]) noted that the court hearing the appeal:
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).
It is also necessary in considering the application for leave to issue the subpoena to have regard to whether or not the information sought to be produced ought to have been available at the time of the hearing before the primary judge: CDJ at [116].
CONSIDERATION
The primary judge made orders on 28 March 2023 which in large part continued the existing parenting arrangements for the subject child. He was to live with his father and spend time with his mother. These orders were consistent with the recommendations of the Family Report dated 12 August 2022. The mother had sought that the position be reversed and the child live with her and spend time with the father. The parties do not live in the same city.
This background is important because it is plain that neither party, and in this context more significantly the mother, ran her case on the basis that time with the other parent would expose the child to unacceptable risk.
This is an appeal against a discretionary judgment. The Notice of Appeal contains sixteen numbered paragraphs but not all of them are properly described as grounds of appeal. I will use the numbers in these reasons to describe the grounds.
Ground 2 while entitled “error of principle” effectively asserts a failure on the part of the primary judge to take into account relevant matters or in the alternative afford them sufficient weight. Rather than being a complaint about error of principle it is actually a complaint about the exercise of the discretion. Ground 3 is in a similar vein.
Grounds 3, 4, 5, 6, 7, and 8 all have at their core the issue of whether the primary judge had sufficient information about the husband’s partner.
As may be seen from the reasons for judgment the primary judge spent considerable time reflecting on the impact of this lacunae on his consideration of the most appropriate orders.
Ground 4 as it relates to the Independent Children’s Lawyer is not material to this application.
Ground 9 contends that the primary judge failed to apply the law (unspecified) and consider relevant factors including the distance between the parents’ homes – the last of these factors cannot, with respect be relevant since the child was to travel between those two homes on either parties’ application. Ground 11 sets out some specific factors said to be relevant and not considered by the primary judge – this amounts to a lack of reasons complaint and does not relate to the current application. Ground 13 appears to be a repeat of the failure to give weight to relevant considerations. The lack of reasons complaint appears again in Ground 14
Ground 10 appears to relate to an error as regarding telephone communication and is not material to this application.
Ground 12 complains that the Court did not order a more shared arrangement but this would appear at odds with the simultaneous complaint about failure to consider the “practical difficulties of the distance between the parties” (and indeed with the relief the appellant seeks if successful).
Ground 15 does not require consideration on this application.
I do not consider that Ground 16 raises any new matter but appears to summarise and repeat earlier grounds.
It is in this context that I now turn to consider whether the application for leave to issue subpoena(s) should be granted.
The first subpoena is addressed to “NSW police Force Headquarters” and seeks production of:
All police records for Respondent Father’s defacto spouse, Ms [C], subject matter in appeal, including, but not limited to; criminal history, and correspondence records, all communications between AFP and NSW police, all email correspondence and all communications such as reports made to NSW Police by and/or about Ms [C]; DOB […]1998 of current address, [N Street Suburb K], mobile number 04[…].
The reasons for judgment do not identify any issue about Ms C, save and except that she had not filed an affidavit. She had participated in the Family Report interviews.
In seeking issue of a subpoena to the NSW Police the appellant submitted that the purpose of the subpoena was:
To scrutinise the records of Ms. [C], the current partner of the respondent father, who is heavily involved in the care of my son. Given that Ms. [C] was neither cross-examined nor submitted an affidavit during the final hearing, her suitability to be a caregiver to my son remains uncertain.
That submission does not satisfy me that a subpoena to the New South Wales police is necessary, appropriate or that it would produce any documents that would demonstrate error on the part of the primary judge. The application for issue of that subpoena will be refused.
The second subpoena is also addressed to “NSW police force headquarters”, and seeks production of:
All police records for respondent father, Mr [Riordan] including but not limited to; criminal history and correspondence records; all communications between AFP and NSW police, email correspondence and all communications, such as reports made to NSW Police by and/or about Respondent Father, Mr [Riordan], DOB […]1991 of [N Street Suburb K], mobile number 04[…].
The appellant in her submissions indicated that purpose for which she sought issue of that subpoena was:
To obtain the records of the Respondent Father to adduce new evidence that he is also not suitable as a caregiver for my son, certainly not in the position of primary caregiver, given his criminal history and relationships with people with the same background. These subpoenas seek to ensure the safety and wellbeing of my son and seek to indemnify my assertions of coercive abuse regarding the Domestic Violence Order that was placed on me unnecessarily and under false pretence, noting later this was dropped when I contended [sic] it.
The appellant also sought issue of a subpoena to “Australian Federal police Headquarters”, seeking production of the following documents:
All police records for Respondent Father, Mr [Riordan] including, but not limited to; criminal history and correspondence records; all communications between AFP and NSW Police, email correspondence, and all communication, such as reports made to AFP by and/or about Respondent Father Mr [Riordan], DOB […]1991 of current address, [N Street Suburb K], mobile number, 04[…].
I will deal with both of those applications for issue of subpoena together since they seek identical records from two different police entities.
The mother did not run her case at trial on the basis that the father posed an unacceptable risk to the child. The mother’s Notice of Appeal contains the relief she would seek from the court if her appeal were successful. It is significant to set out here the time that she says would be appropriate that the child spend with the father. At order six of her proposed orders, she says the child should spend time with the father, unless otherwise agreed between the parties in writing, as follows:
(a)Each alternate weekend from after school Friday …
(b) …
(c) During the Easter festive period in the Term 1 [Region O] school holiday period
(i)In every odd-numbered year for a ten-day period which will include Easter long weekend period, until 1 pm Easter Monday
(ii) in every even numbered year, for a ten-day period, provided that such time does not commence in the period between 3pm Easter Thursday the Easter long weekend period until 1 pm Easter Monday …
(iii) …
(d) In the [Region O] School holidays in term 2 and 3, from 3pm on the last day of school term … until 5pm, the second Tuesday of the school holidays …
(e) In the [Region O] Christmas school holiday period, in the following manner:
(iv)In odd-numbered years, for the third, fourth and sixth week of those holidays;
(v)In even numbered years, for the first, second and fifth weeks of those holidays;
…
From that much it is clear that the mother’s case is neither a no time case nor a supervised time case. It follows that even if documents exist they are most unlikely to fall into the category of evidence which would be accepted on an application to adduce further evidence. The application for a subpoena to issue to the NSW Police and the AFP to obtain records in respect of the respondent is therefore refused.
The mother is seeking leave from the court to issue a subpoena, addressed to “Childcare centre L – head office”. That subpoena seeks:
2.The following documents and records pertaining to, [X], DOB 2017 (“[X]”), for the time period of enrolment to the present day.
3.The requested documents and records under this subpoena are:
4.School Enrolment Records: All forms and related documentation regarding [X]’s school enrolment.
5.Contact Information: All current and past contact information for [X]. This includes, but is not limited to, any contacts on file for [X], the dates these contact details were added or removed, permissions sought for these additions, reasons for their addition, who requested their addition, and how they were added.
6.Medical Records: Any and all medical history on file for [X], including the dates when this information was disclosed or added.
7.Correspondence: All correspondence related to [X], including but not limited to, any communications from/to contacts/school.
8.Disclosure Records: All records regarding disclosed information about [X], including who the information was disclosed to, what was disclosed, why it was disclosed and when it was disclosed.
9.Contact Information: Full names, contact details, and addresses of individuals or entities liaised with regarding [X] from his enrolment to the present day.
The mother submitted documents from this organisation would be reviewed to assess “potential efforts to marginalise my involvement in X’s life and to determine if there has been undue influence exerted over his educational and healthcare providers.”
X is six years old. X does not attend child care. The documents must be historical in nature. The mother does not say that such documents exist, but rather that she wants the opportunity to see if they exist. Given the orders which she seeks and the historical nature of the documents, these are not documents which would satisfy this court that they should be admitted on the appeal to demonstrate error by the primary judge.
The appellant makes the same application in respect of issue of subpoena to K Public School and M Health Services and makes the same submissions in support of leave been granted for those subpoenas to issue. I accept that the documents from the school are more current than those from the childcare centre. However, I remain concerned that the mother has not pointed to any evidence, by which this court would be satisfied, that the documents which she seeks to obtain via leave to issue subpoenas would be documents which should be before the court on the appeal.
The mother’s submissions anticipate that her application for issue of subpoena may be considered a fishing expedition but her submissions do no more than deny that that is the case.
It follows that I do not intend to permit the subpoenas, which are addressed to the childcare centre, K Public School or M Health Services.
I am conscious of the guidance of the High Court in CDJ at [117] – [118]:
117.The discretion to admit further evidence obviously needs to be exercised with much care in parenting cases. The decision as to who should have the day to day care of children will so often be an agonising one, as indeed it is in the present case where both parents are anxious for their children's welfare. The advantage said to be attached to the opportunity of a judge at first instance to see and hear the witnesses on issues of credibility and the like may perhaps on occasions be exaggerated. Nevertheless, those advantages are likely to be real ones in a parenting case heard by a specialist judge whose decision will involve a choice of who will be a better “custodian” of the children: sometimes either parent would be an excellent choice, and often neither would be ideal.
118.The need for caution is particularly great when an order for a change in the residence of children has been made and the appellant seeks to tender further evidence pointing to changes in circumstances, outlook or apparent welfare. In all but the most ideal of circumstances, some time will be taken by children to adapt to their different situations. So too the public and private interest in the finality of litigation must be given some weight even in cases of this kind. The important private interests of children are unlikely, save in special circumstances, to be served by frequent displacements of them and the uncertainty of prolonged and repetitive proceedings.
In the context of this case – where the primary judge spoke in glowing terms of both parties as parents and noted that an equal time arrangement would likely be appropriate if they lived more reasonably proximate – I am persuaded that it is neither necessary nor an appropriate exercise of the discretion concerning both leave to issue subpoena (but also in light of leave to admit further evidence) that I grant leave to issue subpoena and the application will therefore be refused.
I certify that the preceding forty-three (43) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Christie.
Associate:
Dated: 3 August 2023
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