Jebbett & Corey (No 2) - [2020] FamCAFC 170

FAMILY COURT OF AUSTRALIA

JEBBETT & COREY (NO. 2)

[2020] FamCAFC 170

FAMILY LAW – APPEAL – APPLICATION IN APPEAL – Leave to issue a subpoena to the Department of Child Safety, Youth and Women – Where the documents sought by the applicant have less than tangential relevance to one ground of appeal – Where the production of the documents would offend public policy – Where the production of the documents is not of critical importance to the appeal – Where there is no compelling reason in the public interest for disclosure of the documents – Application dismissed.

Child Protection Act 1999 (Qld) s 186

APPLICANT:

Ms Jebbett

RESPONDENT:

Mr Corey

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

FILE NUMBER:

BRC

9223

2017

APPEAL NUMBER:

NOA

2019

DATE DELIVERED:

16 July 2020

PLACE DELIVERED:

Sydney

PLACE HEARD:

Brisbane (via videolink)

JUDGMENT OF:

Aldridge J

HEARING DATE:

14 July 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

29 May 2019

LOWER COURT MNC:

[2019] FamCA 358

REPRESENTATION

THE APPLICANT:

In person

COUNSEL FOR THE RESPONDENT:

Mr Jones

SOLICITOR FOR THE RESPONDENT:

MLDG Lawyers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston

Orders made on 14 July 2020

The Application in an Appeal filed on 8 July 2020 be dismissed.

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 Jebbett & Corey (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).

THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT
BRISBANE

Appeal Number: NOA 54 of 2019
File Number: BRC 9223 of 2017

Ms Jebbett

Applicant

And

Mr Corey

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

By an Application in an Appeal filed on 8 July 2020, Ms Jebbett (“the applicant”) sought leave to issue a subpoena to the Department of Child Safety, Youth and Women (“the Department”) in Queensland for the production of documents to be used by her in an appeal against parenting orders made by a judge of the Family Court of Australia on 29 May 2019. Mr Corey (“the respondent”) and the Independent Children’s Lawyer opposed the application.
I dismissed the application on 14 July 2020 and these are my reasons for doing so.
The hearing before the primary judge, which lasted for nine days with further written submissions filed by each party, raised difficult and complicated issues.
In summary, the outcome was that the parties’ child was to live with the applicant and spend no time with the respondent. The applicant was granted sole parental responsibility…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Jebbett & Corey (No 2)

Details

AGLC: Jebbett & Corey (No 2) [2020] FamCAFC 170
Case: [2020] FamCAFC 170
Decision Date: 16 July 2020

CaseChat Overview and Summary

The Family Court of Australia heard an appeal brought by Ms Jebbett against parenting orders made by a judge of the Family Court of Australia on 29 May 2019. The primary judge’s orders, which were the subject of the appeal, required the parties’ child to live with the applicant and spend no time with the respondent. The applicant was granted sole parental responsibility for the child but was required to consult with the respondent in writing as to decisions to be made in the exercise of that responsibility. The appeal against these orders, along with the applicant’s other appeal against the primary judge’s refusal to stay the parenting orders, is listed for hearing on 30 July 2020.

The applicant sought leave to issue a subpoena to the Department of Child Safety, Youth and Women in Queensland for the production of documents that she intended to use in her appeal against the primary judge’s orders. The respondent and the Independent Children’s Lawyer opposed the application. The applicant sought the documents to identify the notifier of a notification made to the Department about the child in late November 2018, just before the commencement of the hearing before the primary judge. The applicant submitted that if the notifier is one of the experts that gave evidence in the proceedings before the primary judge, then it follows that the expert was biased against her and dishonest, and that the expert’s evidence and opinions should not have been accepted. The appeal against the primary judge’s orders is based on the proposition that the primary judge relied heavily on expert evidence which was given without knowledge and experience.

The court dismissed the application on 14 July 2020. The court found that the identity of the notifier is of less than tangential relevance to the ground of appeal and that the disclosure of the identity of the notifier would offend public policy. The court found that there is no compelling reason in the public interest for disclosure of the identity of the notifier. The court also found that the production of the document sought by the applicant is not of critical importance to the appeal and that the issue of the subpoena is likely to give rise to applications which would require the appeal to be delayed.

The court certified that the preceding seventeen paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 16 July 2020. The court dismissed the Application in an Appeal filed on 8 July 2020 and noted that publication of this judgment by the Court under the pseudonym Jebbett & Corey (No. 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Orders