Riley and Riley

[2010] FamCA 65

FAMILY COURT OF AUSTRALIA

RILEY & RILEY [2010] FamCA 65

FAMILY LAW – PRACTICE AND PROCEDURE - Subpoenas

APPLICANT: Mr Riley

RESPONDENT: Ms Riley

FILE NUMBER: CSC 165 of 2008

DATE DELIVERED: 2 February 2010

PLACE DELIVERED: Townsville

PLACE HEARD: Townsville

JUDGMENT OF: Mushin J

HEARING DATE: 2 February 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT: In Person

SOLICITOR FOR THE APPLICANT: N/A

COUNSEL FOR THE RESPONDENT: Mr Bevan

SOLICITOR FOR THE RESPONDENT: Bevan Griffin Solicitors

Orders

IT IS ORDERED THAT

1. The father be and is granted leave to file and serve a subpoena directed to the District Manager, Townsville Health Services District Clinical Information Services to produce documents in the following categories:

   (i)all documents including file notes pertaining to K born on … October 2003; and

   (ii)all documents including file notes pertaining to T born on … February 2005.

2. The father’s applications for filing and service of subpoenae be and are hereby dismissed.

3. Notwithstanding paragraph 2 hereof, leave be granted to the father to renew any application for filing and serving of any subpoena for a witness to give evidence in these proceedings at such time as the date of the trial of these applications is determined.

4. All applications be otherwise referred to Registrar Boyd for the making of such further orders and directions as may be necessary for the preparation of these matters for trial in the April 2010 sittings of the court;

5. All questions of costs be reserved.

6. General liberty be reserved to both parties to apply.

IT IS CERTIFIED

1. Pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of counsel.

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

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: CSC 165 of 2008

MR RILEY

Applicant

And

MS RILEY

Respondent

REASONS FOR JUDGMENT

1. These are protracted proceedings arising out of the breakdown of the parties’ relationship.  The orders of 26 November 2008 and 8 May 2009 are relevant, they being orders relating to the parties’ children, K born in October 2003, T born in February 2005 and B born in August 2006.  Pursuant to the later orders all three children live with the mother and spend a considerable specified time with the father.  There is also telephone communication between the children and the father.  The orders also contain very detailed requirements with regard to, amongst other things, denigration, consumption of excessive alcohol, attendance on general practitioners, authorisation of practitioners and other health professionals and schools to provide information and like matters.

2. On 24 July 2009 the father filed two applications alleging that the mother had contravened the subject orders in several respects.  The essence of the contraventions, without excluding anything else, would appear to centre upon the medical treatment of the children initiated allegedly by the mother and the mother’s failure to provide to the father relevant information as required by the orders.  In addition to the two applications for contravention there is a further application in a case filed by the father on 20 November 2009 seeking certain restraints against the mother with regard to medical practitioners together with other matters to which it is not necessary or relevant to refer at this time.  I have also been informed that there are competing applications for alteration of property interests between the parties. 

3. Before me, the applications for contravention will be heard, hopefully in my sittings in April/May of this year and it is to those matters which these reasons for judgment are relevant.  In support of his application for contravention, the father has sought my leave to file 25 subpoenas addressed to various people.  There has been strenuous objection raised to all of those subpoenas and it is appropriate that I deal with them in categories and then on an individual basis where necessary. 

4. Of the 25 subpoenas, the majority seek to require the individuals sought to be subpoenaed to attend Court to give evidence and not to produce any document.  These matters are presently in the course of preparation and a date has not yet been set for their hearing.  Accordingly, it is premature to subpoena anybody to give evidence as no hearing date has been set down and leave will be refused in respect of all of those subpoenas. I have referred to them individually during the argument in relation to this matter before me this morning. 

5. To the extent that the subpoenas are not in that category, I now deal with them individually.  They do not appear in any necessary order but rather for convenience and the way in which they appear in the documents provided to me.  The first two subpoenas in that category are sought to be addressed to the maternal grandfather and the maternal grandmother. The maternal grandparents are the respondent mother’s parents with whom I think the mother lives or at least has lived at some relevant time.  They seek the production of the following documents:

   All documents relating to Centrelink including but not limited to payments dating back five years;  tax returns dating back five years;  receipts pertaining to purchases of furniture;  receipts pertaining to sales of furniture;  bank statements dating back five years.

6. The challenge in relation to these subpoenas is that of the relevance of the subpoenas to the proceedings.  The essence of the argument by the father is that the mother’s evidence with regard to her financial means is inconsistent and because the mother has lived with her parents she must be receiving or she may well be receiving assistance from them and accordingly, it is appropriate for their financial records in these ways to be disclosed to the Court.  I disagree with the father’s submissions in that regard.  The question of whether the mother may have an inconsistency in her evidence in that regard will be a matter initially for the cross-examination of the mother in the event that she goes into the witness box, although having filed an affidavit she may well have to. However, that does not justify the relevance of producing her parents’ financial records and I find that those subpoenas are remote and, therefore, not relevant.  I rule against leave to the father in those respects. 

7. The next subpoena in contention is sought to be directed to the Director of ABC Learning Centres.  It seeks the production of:

   All education documents including reports pertaining to [T] and [B].  All file notes of correspondence relating to [the mother].  The sign in and out weekly register.

8. This subpoena is, on the argument of the father, relevant to paragraph 12 of the May 2009 order requiring the parties to authorise to the extent relevant:

   School’s to provide and each parent is entitled to receive at their own request and expense any and all information in relation to the health, education and welfare of the children including but not limited to details  of any other illness suffered by the child or children and the treatment required, school reports, newsletters, notifications or parent teacher interviews, photograph order forms and details or any disciplinary matter and that this order shall constitute such authority.

9. The relevant detail of the alleged contravention is in the following terms, with a reference to “JCU” which is an abbreviation of “James Cook University” terms:

   I attended the JCU Medical Centre in order to speak to medical practitioners and to acquire the assessments that have been conducted upon the two children, [K] and [T].  I was refused all correspondence and was advised that the information is confidential and that the orders of the Federal Magistrates Court were irrelevant.  I was told to go through the Townsville’s Hospital’s legal branch and to fill out further paperwork to gain any form of access.  This clearly indicates that Ms [N] has made no effort to provide them with an authority for me to access and speak to medical practitioners involved.  Ms [N] is denying me my right to be actively involved in the children’s welfare.

10. The alleged breach does not allege anything against a school.  It only alleges against the medical practitioners and the medical centre.  Accordingly, in my view, obtaining documents from the education institution is not relevant to the proceedings and I rule against the father in that respect. 

11. The next subpoena is to Ms J, the director ABC Learning Centres in Brisbane and seeks:

    All documents including but not limited to the education of [K], school reports, progress reports, reports relating to any outside medical intervention.

12. Again, to the extent that that seeks education documents, they are at this stage not relevant.  To the extent that they seek documents relating to any outside medical intervention which I read down to the child, K, they are not relevant and are more appropriately obtained from a medical centre, if that is what is sought. 

13. The next subpoena which was abandoned on my very strong recommendation by the father was addressed to Mr Samuels, the former solicitor of the mother, and sought a wide range of documents which are, on their face, almost certainly the subject of legal privilege.  I told the father during submissions that he was welcome to go down the course but would be at risk for costs and he, while arguing against that, ultimately accepted the proposition which I put to him and he did not proceed with that matter.  By virtue of the way in which that matter was argued and the strong view expressed by me, it is appropriate that I refer to it in these reasons for judgment. 

14. The next subpoena is sought to be addressed to the Director-General, Department of Communities (Child Safety Services) in Brisbane and seeks “all documents” pertaining the mother, her parents, the three children and the father.  No allegation is made with respect to that organisation.  No contravention is alleged in respect of it and it is, accordingly, not relevant for present purposes.

15. Finally, the last subpoena is sought to be addressed to the district manager of Townsville Health Services District and seeks:

    All documents including file notes pertaining to the mother, her parents, the three children, the father and other documents relating to the Department of Communities in relation to the father.

16. It would appear, on its face, that this subpoena is more appropriately addressed to the JCU Medical Centre to which I have referred but, on the assurance of the father that he was informed by the JCU Medical Centre that this is the organisation which retains these documents, it appears to me that this subpoena goes to the heart of the matter.  However, I see no relevance in the documents insofar as they relate to the mother, her parents or the father and no allegation of breach is made in respect of the youngest child, B.  However, the documents in respect of the children, K and T, are clearly relevant to this matter and to that extent the father will have leave to file and serve a subpoena.

17. The father will present a redrafted subpoena seeking:

    All documents including file notes pertaining to [K] and include the birth date and all documents including files notes pertaining to [T] and include the birth date.  Upon presentation of that subpoena leave is given for filing and service.

I certify that the preceding seventeen (17) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mushin

Associate: 

Date:  8 February 2010