Lander and Bradbury

[2018] FamCA 960

FAMILY COURT OF AUSTRALIA

LANDER & BRADBURY [2018] FamCA 960

PARENTING – PROCEDURE – issue of subpoena – Notice of Objection dismissed – application for person to give evidence at interim proceedings – application refused – application for leave to file affidavit material out of time – leave refused – leave granted to file response and application for adjournment – costs reserved.

APPLICANT: Ms Lander

RESPONDENT: Mr Bradbury

FILE NUMBER: CAC 239 of 2017

DATE DELIVERED: 19 November 2018

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 19 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

COUNSEL FOR THE RESPONDENT: Mr J Haddock

SOLICITOR FOR THE RESPONDENT: Infinity Legal

Orders

IT IS ORDERED THAT

1. The Notice of Objection in relation to the subpoena addressed to Ms E Bradbury for her to attend to give evidence at the contravention proceedings on 22 November 2018 is dismissed.

2. I give permission for Ms Bradbury to attend at those proceedings by telephone link. 

IT IS FURTHER ORDERED THAT

1. It is ordered that the Mother's application to have Ms E Bradbury attend to give evidence at the interim proceedings on 22 November 2018 is refused.

IT IS FURTHER ORDERED THAT

1. I refuse permission to the Mother to file and serve affidavit material to rely upon in response to the Father's Application in a Case which is currently adjourned to 2pm on 22 November 2018.

2. The Mother is given permission, notwithstanding the directions given on 30 October 2018, to file a response to the Father's Application in a Case by no later than 4pm on 20 November 2018.

3. The Mother is given liberty to file an Application for Adjournment and supporting material in relation to that by no later than 4pm on 20 November 2018.

4. The Father's and Ms E Bradbury's Applications for Costs are reserved to 22 November 2018.

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 Lander & Bradbury 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).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 239 of 2017

Ms Lander

Applicant

And

Mr Bradbury

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. A subpoena has been directed to Ms E Bradbury, the mother of the Father, to give evidence at two sets of proceedings due to take place on 22 November 2018.  The first of those proceedings relates to contravention proceedings taken by the Father against the Mother and it is asserted that Ms Bradbury will be able to give relevant evidence as to how it was that the Father came by an email purportedly sent by the Mother denigrating him to his sister. 

2. The Mother asserts it is relevant because the Father's account of how he received the email will be shown to be untrue and that will go to questions involving his credibility, but also as to any significance that may attach to the mode by which the evidence was obtained.  This is sufficient to mean that it is on the cards that the evidence that may be given by Ms Bradbury would be relevant to the proceedings. 

3. However, the subpoena was directed to Ms Bradbury attending in person.  Ms Bradbury is currently in Queensland and the question has arisen as to the adequacy of conduct money.  Ms Lander has indicated that provided her hearing issues can be dealt with she does not object to Ms Bradbury giving her evidence by telephone. 

4. The mother seeks the attendance of Ms Bradbury to give evidence at an upcoming interim hearing in relation to arrangements that are child-related.  She says that she has annexed or has provided previous affidavits prepared by Ms Bradbury for her own use in these proceedings, but that she seeks Ms Bradbury attend so that she might give some evidence about what she has previously observed at a family Christmas that her son was involved at, that she would be able to show that that family Christmas was not a healthy experience, that she would be able to comment on issues concerning the child’s schooling and other issues relating to allegations that the Father has anger issues, damages property and has been violent to the Mother in front of the children. 

5. A number of these matters appear to have been dealt with in previous proceedings to some extent although the Mother disputes that they were properly dealt with previously.  She has not given any indication as to the scope of evidence that may be given by Ms Bradbury.  I note the application of r 5.10, which deals with interim applications and notes that cross-examination will be allowed at a hearing only in exceptional circumstances.  In this matter the Mother has not identified sufficiently exceptional circumstances to justify a departure from the Rules. 

6. Procedural directions were given on 30 October 2018, at which time the Father's Application in a Case was adjourned for hearing for a period of two hours commencing at 2pm on 22 November 2018. 

7. The Mother was directed to file and serve any material, including any material in response and response relating to interim financial matters by 4pm on 12 November 2018.  It is now 5pm on 19 November 2018 with the hearing to take place on 22 November 2018.  The Mother has explained that she had difficulties in preparing the material and has now advised that the material is still not yet ready but that she intends to finalise the material tomorrow. 

8. This was in the context where she asserts that she had previously attended the Registry to file the material only for the Registry to refuse on the basis that my directions did not allow for the filing of the material beyond the date allocated, 12 November 2018. 

9. The Registry was quite correct to refuse to accept that material for filing.   Sensibly the Registry advised that the Mother would need to make an application to me, given that the material was being filed outside of the directions but suggested, again properly, to the Mother that she provide the material to the Father's solicitor.  That course of action would have placed him on proper notice as to the material that he could be expected to face in opposition to his Application in a Case.  The Mother chose not to take that course of action and the Mother has still not provided the material and the Mother has not yet prepared the material. 

10. The Father advises that he will be prejudiced in his ability to run the case this coming Thursday if the Mother is permitted to now file a response and rely upon further material.  As part of that I am advised that the Mother has provided to the Father a 1,000 page document which is described as a Tender Bundle that she intends to use both in relation to the contraventions that are to be dealt with on that day and in relation to the interim proceedings.

11. Considering the scope of material and any affidavit necessary to support that material in so far as it relates to the interim proceedings, the Father's fears about difficulty in preparing for the case appear to me to be well-founded. 

I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 19 November 2018.

Associate: 

Date:  19 November 2018