Richards and Young

[2008] FamCA 757

FAMILY COURT OF AUSTRALIA

RICHARDS & YOUNG [2008] FamCA 757

FAMILY LAW – CHILDREN – With whom a child communicates –  Telephone communication between a party and the children of the marriage
FAMILY LAW – PRACTICE AND PROCEDURE - Registrar - Review of decision - Subpoenas to produce documents

Family Law Act 1975 (Cth)

Re Bell;  Ex parte Lees (1980) 146 CLR 141

APPLICANT: Mr Richards

RESPONDENT: Ms Young

INDEPENDENT CHILDREN’S LAWYER: Legal Aid Commission of New South Wales

FILE NUMBER: BRF 3190 of 2005

DATE DELIVERED: 28 August 2008

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: The Hon. Justice Rose

HEARING DATE: 28 August 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Levy Partners

SOLICITOR FOR THE RESPONDENT: Delaney & Delaney

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: K Beckhouse

Orders

1. That leave is granted for the Affidavit of the mother sworn 28 August 2008 to be filed in Court.

2. That a Notice of Address for Service should be filed by the solicitor for the father by 4.00pm, 29 August 2008.

Interim consent orders

1. That pending further order and by consent orders are made in accordance with the document entitled “Terms of Settlement” dated today, signed by the parties and their respective legal representatives and the independent children’s lawyer.

Application for review

1. That the father’s pending application for review in respect of the order for inspection of documents made by the Registrar on 29 July 2008 is dismissed.

2. That the stay of proceedings ordered by the Registrar on 29 July 2008 is set aside.

Application on behalf of the father for telephone communication

1. That the oral application made on behalf of the father for telephone communication with the three children is dismissed.

Procedural orders re affidavits and witness statements

1. That no affidavit be filed by a party to the proceedings without leave of the Court.

2. That any affidavit filed and served with the leave of the Court only address the “specific issues” permitted by the order granting such leave.

3. That any affidavit filed pursuant to these Orders be in a format where each “specific issue” appears as a separate heading and the facts the witness desires to rely upon in relation to that issue appear immediately thereunder.

4. That no witness statement be served on a party without leave of the Court.

5. That any witness statement served with the leave of the Court only address the “specific issues” permitted by the Court order granting leave to serve the witness statement.

6. That any witness statement served pursuant to these orders be in a format where each “specific issue” about which the statement is permitted to provide information, appear as a separate heading and the facts the witness desires to rely upon in relation to that issue appear immediately thereunder.

Issues for determination

1. That the issues for determination on the subsequent hearing of these proceedings are as follows:

   (a)The parental attitude of the parties.

   (b)The capacity of the parties to provide for the physical, emotional and intellectual needs of the three children.

   (c)The care of the three children by each of the parties since orders were made on 3 November 2006.

   (d)Whether any of the parties has not complied with orders made on 3 November 2006 and any subsequent orders, and if so, the circumstances.

   (e)The proposals of each of the parties for the future care of the three children and the periods of time that the other party should spend and communicate with the three children.

Witnesses and affidavits

1. That affidavits on behalf of the parties be filed and served no later than 4.00pm fourteen (14) days prior to the date fixed for the resumption of the hearing.

2. That leave is granted to the father to file and serve the following affidavits:

   (a)Affidavit of the father in relation to each of the issues itemised in Order 13 hereof.

   (b)Affidavit of Mr P in relation to the parental attitude of the father since Orders made 3 November 2006.

   (c)Affidavit of Mr H as to the parental attitude of the father to the three children and his capacity to provide for their physical and emotional needs whilst Mr H was supervising periods of time spent by the father with the three children during 2008.

3. That leave is granted to the mother to file and serve the following affidavits:

   (a)Affidavit of the mother in relation to each of the issues itemised in Order 13 hereof.

   (b)Affidavit of Dr M, general practitioner in relation to the mother’s compliance with Orders made on 3 November 2006 and her capacity to provide for the emotional needs of the three children.

4. That leave is granted to the independent children’s lawyer to file and serve either an affidavit or witness statement by the Principal of B School.

Subpoenas to produce documents

1. That the following subpoena to produce documents be issued by the independent children’s lawyer:

   (a)The Principal, B School to provide documents as previously subpoenaed, however for the period from the date of the previous subpoena to the present.

   (b)The Commissioner of Queensland Police to produce:

   (i)statements or copies of such statements furnished to the police by all or any of the three children and the parties during 2007 in relation to the periods of time that the three children spent with the father in Tasmania and Queensland allegedly without the consent of the mother or pursuant to any court order;

   (ii)any records of antecedents of the father in the State of Queensland.

2. That the following subpoena to produce documents be issued by the solicitor for the mother:

   (a)Dr T, psychiatrist to produce his clinical notes in relation to all the father’s attendances upon him, including his diagnosis, treatment and prognosis and any other relevant matter in relation to such attendances or consultations as well as all correspondence and/or reports passing between Dr T and any other health professional.

Liberty to apply

1. Liberty to apply is granted to the legal representatives for the parties and the independent children’s lawyer to vary the directions upon seven (7) days written notice being given to each of the parties in these proceedings.

Property settlement proceedings

1. That in relation to the property settlement proceedings it is directed that the legal representatives for the parties provide a collaborative balance sheet of the net property of the parties together with a brief submission regarding:

   (a)the financial and non-financial contributions contended by each of the parties,

   (b)an assessment of each of the parties’ respective contributions and setting out all relevant s.75(2) matters that call for consideration, and

   (c)assessment of the hearing time that will be required and any interlocutory issues that will need to be determined such as the appointment of single joint experts.

2. That the property settlement proceedings will be listed for further mention and directions before me to assess the additional hearing time that will be required to encompass the property settlement proceedings, it having been agreed that a further three (3) days will be required for the continuation of the parenting proceedings.

3. That the further mention/directions hearing to be fixed administratively may be conducted by telephone link.

Notations:

A.In relation to Order 1 hereof, copies of the Affidavit of the mother sworn 28 August 2008 have been provided to the other parties in these proceedings.

B.In relation to Order 2 above, a typescript of the “Terms of Settlement” is to be forwarded by email to the Associate to the Hon. Justice Rose.

C.The mother consents to the parenting proceedings being listed before another trial Judge.

D.The father does not consent to the parenting proceedings being listed before another trial Judge.

IT IS NOTED that publication of this judgment under the pseudonym Richards & Young is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER:  BRF3190 of 2005

MR RICHARDS

Applicant

And

MS YOUNG

Respondent

REASONS FOR JUDGMENT

Application for Review of Registrar’s decision

1. An interlocutory issue has arisen for determination as to whether or not the Application for Review by the father of the order made by a Registrar on 29 July 2008 to permit the parties to inspect documents produced by the Director General of Queensland Health pursuant to the subpoena dated 11 July 2008 should be set aside.

2. Counsel for the father submitted that the relevant order should be set aside on two bases:

   (a)To permit inspection of documents in those circumstances will amount to an invasion of the father’s privacy.

   (b)That there had been criminal proceedings against the father implicitly by the Crown in the State of Queensland in which these documents had some relevance.

3. So far as the latter is concerned, I was informed that those proceedings had been concluded.  The Magistrate dismissed what presumably was a summons or a complaint as the Crown did not offer evidence.  Consequently, those proceedings are at an end.

4. With regard to counsel’s submission re invasion of privacy.  It is understandable that parties to proceedings in this Court, and this case in particular, may be sensitive to another party inspecting medical records relating to past and current treatment.

5. That submission has of course a considerable irony given that counsel for the father had raised with me the prospect of seeking leave for a subpoena to produce documents to be issued to the mother’s medical practitioner to produce her medical records.  Whether that will be pursued is yet to be seen.

6. Obviously, the question of privacy did not arise so far as the mother was concerned at the hands of the father.

7. The proceedings pending before me are parenting proceedings in which pursuant to s.60CA any orders that are made must be in the best interests of the children which is the paramount consideration.

8. In my view, private or public considerations are subservient to that interest provided that such an approach has relevance to issues in the proceedings.

9. Amongst the issues in the proceedings includes the capacity of the parties to provide for the emotional and physical needs of the three children.

10. It is conceivable that the documents sought to be produced may be relevant to that issue.

11. In terms of the approach so far as the law is concerned, I rely upon the High Court’s judgment in Re Bell; Ex parte Lees (1980) 146 CLR 141.

12. Consequently, the father’s application for review of the Registrar’s decision made on 29 July 2008 is dismissed, and that the stay of the proceedings ordered by the Registrar on 29 July 2008 is set aside.

Oral application for telephone communication by the father with the three children

1. An oral application has been made on behalf of the father for an order to permit telephone communication between himself and the three children on a regular basis to occur during the fortnight between each of the periods of time that he will spend with the three children pursuant to interim orders made today.

2. I can see the benefits to the three children of such an order being made.  It would further the relationship between them and the father to be able to speak with him given some of the positive aspects of their relationship set out in Exhibit X.

3. However, I have to balance that against the risk to the emotional welfare of the three children should such a telephone communication take place which might be brought about by the father either deliberately or by way of impulse manipulating the situation to deal with matters as set on in paragraph 73 of Exhibit X.

4. On one view of it, the father should have been appropriately sensitive to the three children not to have raised the matters that are set out in paragraph 73 in their presence given that this has been a live issue between the parties and one which remains for determination during the final hearing.

5. There has not been cross-examination of Dr L or the father in relation to those matters.

6. Consequently, I have to take at face value at this interim stage only the matters set out in paragraph 73 of Exhibit X.  I also take into account that orders should be made that lessen the risk of emotional upset to the three children rather than which create the potential for it.

7. Therefore, for those reasons I reluctantly refuse the oral application and shall make an order dismissing the application.

I certify that the preceding nineteen paragraphs (19) paragraphs are a true copy of the reasons for judgment of the Hon. Justice Rose

Associate: …

Date:  3 September 2008