Jephson & Bonnel
[2022] FedCFamC2F 445
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Jephson & Bonnel [2022] FedCFamC2F 445
File number(s): BRC 12366 of 2021 Judgment of: JUDGE VASTA Date of judgment: 8 April 2022 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – review of registrar’s decision – application dismissed – no order as to costs Legislation: Federal Circuit and Family Court Act 2021 (Cth): s 67, s 254, s 256,
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth): Part 14.3,r 1.31, r. 14.05
Division: Division 2 Family Law Number of paragraphs: 29 Date of last submission/s: 14 April 2022 Date of hearing: In Chambers Place: Brisbane Solicitor for the Applicant: Small Myers Hughes Lawyers Solicitor for the Respondent: The Respondent making written submission on her own behalf ORDERS
BRC 12366 of 2021 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR JEPHSON
Applicant
AND: MS BONNEL
Respondent
ORDER MADE BY:
JUDGE VASTA
DATE OF ORDER:
8 APRIL 2022
THE COURT ORDERS THAT:
1.The Application for Review filed on 7 March 2022 be dismissed.
2.There be no order as to costs.
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 the pseudonym Jephson & Bonnel has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE VASTA
INTRODUCTION
On 17 February 2022, a Judicial Registrar ordered that a subpoena, filed by the husband on 31 December 2021, to Dr B and to Dr C be set aside. On 15 March 2022, the husband asked this Court to review that order.
Reviews of Decisions
Upon the enactment of the Federal Circuit and Family Court Act 2021 (Cth) (“the Act”), s 254 permits the Chief Judge to delegate powers of the division two judges to “delegates”. Relevantly for this matter, the power of a judge to make the form of order that was made, has been delegated to the Judicial Registrar.
As a “check” on this delegated power, s 256 provides that a party to proceedings in which a delegate has exercised such power can apply to the Court for a review of that exercise of power. The section makes it clear that such an application must be within the time prescribed by the Rules of Court or within any further time allowed in accordance with the Rules of Court.
The section further provides that, upon reviewing the “exercise of power by a delegate”, the Court may make any order or orders it thinks fit in relation to the matter in respect of which the power was exercised.
The Rules of Court
Part 14.3 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) pertain to the review of exercise of power by a Senior Judicial Registrar or Judicial Registrar. The Rules state that a review must be filed within 21 days after the order or decision is made. The application must be served not later than seven days after it is filed and the application must be listed for hearing as soon as possible and within 28 days after the filing, unless it is not practicable to do so.
The procedure for the review states that a Court must hear an application for review as “an original hearing” which means a rehearing of the whole matter and not simply a review of the decision of the original Court (as would happen in judicial review applications).
The Rules state that the Court may receive as evidence any affidavit or exhibits that were tendered in the first hearing or any further affidavit or exhibit.
The overarching purpose of the Rules of Court (as provided by s 67 of the Act) is to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible. Rule 1.31 allows the Court, in the interests of justice, to dispense with compliance, or full compliance, with any of the Rules at any time. The Rule further decrees that if a Court gives a direction or makes an order that is inconsistent with any of these Rules, the direction or order of the Court prevails in that proceeding.
Consistent with the overarching principles of both the Act and these Rules, I am of the view that the power to review the decision of a Senior Judicial Registrar, or Judicial Registrar, should not be seen as merely another step in the case management process. Nor should it be seen as a vehicle by which parties can take their matter out of the normal case management process and bring it before a Judge in an attempt to somehow “bypass” the case management process.
Whilst the Rules state that the Court must embark upon “an original hearing”, that simply means that the Court is not limited to ascertaining whether there is a jurisdictional error in the manner in which the “delegate” has exercised their power. The focus is still on the decision of the “delegate” but the Court is not limited in how it conducts the review.
This Review
I have decided that this review will be conducted as an original hearing on the papers. To this end, I made a number of directions requiring the parties to make their submissions. I have had regard to those submissions.
Background
The mother initiated both parenting and property proceedings in this Court in September 2021. In her affidavit, filed at the time of her application, the mother detailed that there were two children of the marriage and that another daughter of the father, from a previous relationship, also lived with them for significant periods. She claimed that the father had drugged her during the relationship.
At paragraph 38, and following, of that affidavit, the mother deposed:-
38. In or around … 2016 [X], his daughter aged eight time, told me she found weird videos on daddy’s phone of me giving birth to something. I was confused and I told her I did not give birth and I had C-sections. She had a strange look on her face and told me I should watch it then.
39. It took around a week for him to be home and asleep as he was often away or awake all night on [drugs] it was tricky to find a moment, so I did not get in trouble and get caught. I searched through his phone, and I found multiple sexual videos of myself. I realise the dates of these lined up with the times I’d been feeling unusually tired a lot and spent all day in bed as my eyelids felt so heavy. I ordered … (vitamin C supplements) as I search for a natural way to help improve my fatigue. [Mr Jepshon] told me I was depressed and needed more antidepressants otherwise [drugs] would help. He would often tried to encourage me to use [drugs] as he thinks it solves everything.
40. These videos are explicit and while I am unconscious [Mr Jephson] is having sex with me ... I often wake up sore and did not know why, I was on a few occasional bleeding ... I went to the doctor and he tested and told me I kept having repeated gastro. I did not know at the time but I thought the bleeding was something from that.
41. After discovering the videos, I told [Mr Jephson] I knew he was raping me. He said “it’s not rape because you are my wife and I own you. Plus you always whinge … so I did it as a favour so it didn’t hurt you”. I knew he was sick and he couldn’t talk his way out of this as I had video proof. Weeks later he drugged and raped me again. I fell pregnant to [Y] on this occasion. He told me “you can’t leave now”. Although this was the worst year of my life I chose to keep [Y]. I knew I had a lot of work to do to build up strength to leave him eventually. I began attending psychologist appointments as instructed by my regular GP [Dr C] who referred me to [Dr B]. I have confided to both of these practitioners about my struggles and the rape.
42. [Dr B] advised me I was in a domestic violent relationship and assisted me to understand this as I was making excuses for his behaviour. Since leaving an abusive relationship it is a lot clearer how manipulative he is and I will continue to speak to professionals to continue my healing.
The husband filed an affidavit in response and did not speak directly of these allegations, except to say (in paragraph 90 of that affidavit) that “the allegations against me in relation to family violence are historical dating back to … 2016. The allegations (the mother) has made against me are serious, however the allegations (which are denied) have not prevented the children spending time with me on a regular basis”.
On 2 November 2021, the mother filed a further affidavit where she spoke of the father drugging her and sexually abusing her. She did not say anything further about disclosing these matters to other people.
The subpoenas and the decision of the Registrar
On 31 December 2021, the father filed a subpoena to Dr B, care of D Practice and also a subpoena to Dr C. On 7 January 2022, the mother filed objections to those subpoenas.
On 1 February 2022, the Judicial Registrar made orders that the mother file written submissions on the subject of the subpoena objections and, a week later, that the father file written submissions on the same subject.
On 17 February 2022, the registrar ordered that those two subpoena be set aside.
This review
The mother has submitted that the communications that she had between herself and the GP and herself and the psychologists were confidential. She said that her privacy would be breached if all these records were to be released for the father to pore over in the hope of finding something that would go to her character. She submitted that the solicitor for the father told the Registrar (presumably on 1 February 2022) that the subpoenas would go to the character of the mother.
She implies that this is the reason why the Registrar wanted written submissions. However, the submissions of the father are that any notations by the GP or the psychologist are relevant in these proceedings. The submission is that these documents “are directly relevant to the core issues of risk asserted by the mother”.
The submission also asserts that the mother has made very serious allegations but “seeks to exclude the very material that would presumably assist her case”. The father submits that these records are “best evidence” and are a direct record of representations by the mother as to the allegations that are said to have been made to these persons.
Relevance
The key issue, in determining whether a subpoena should be set aside, is whether there is any relevance in the material that is sought to be produced.
In this case, the evidence that would be produced would go to the issue of whether a complaint was, in fact, made. Contrary to what the father submits, evidence of complaint is not evidence of the truth of the complaint; it is evidence as to the consistency of behaviour. The only relevance that any records, of either the psychologist or the GP, would have, is whether the mother did actually make a complaint.
The father does not need the records of the psychologist to know this fact. The psychologist wrote a letter which said that the mother did make a complaint in the fifth session of counselling that occurred in late 2019. The letter details exactly what the mother had said. There is no need for any further information from the psychologist.
The application for review in respect of the subpoena addressed to D Practice is dismissed.
With regard to the subpoena addressed to Dr C, the submission of the mother is that she is awaiting a similar letter from Dr C “who is currently going through serious medical issues himself, hence why the subpoena has not been produced and why I am unable to produce now”.
All that is needed from Dr C is a letter detailing what was said by the mother in relation to any allegation of being drugged and sexually abused whilst under the influence of those drugs. Of relevance would be any complaint/concern as to bleeding and any physical signs of such. Also of relevance would be any reports by the mother to the GP about having unusual tiredness. This will be provided without the need for a subpoena.
The subpoena that has been issued casts a very wide net. It asks for all documents, files, notes, computer entries, prescriptions, referrals, admissions/discharge documents, reports, correspondence (including email communications) and any other document recording admissions, attendances, diagnosis, medication, treatment or care provided to the mother or any of the children. The only matters of relevance are as I have already observed. A subpoena such as the one issued to Dr C, is no more than a fishing expedition.
For that reason, the application for review in respect of the subpoena addressed to Dr C is dismissed.
The mother has sought indemnity costs of this application. However, she is not legally represented and so therefore has not expended any costs for legal representation. In those circumstances, I can make no order as to costs.
I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Vasta. Dated: 8 April 2022.
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