Rosington and Rosington

[2020] FamCA 269

FAMILY COURT OF AUSTRALIA

ROSINGTON & ROSINGTON [2020] FamCA 269

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Legitimate forensic purpose – Where the mother is awaiting trial for property-related offences – Where a subpoena to NSW Police would not provide insight into charges pursued at trial or potential timing of the trial – Where there is an inherent risk of unfairness if questioned about such criminal proceedings in parenting proceedings – Where there is no legitimate forensic purpose – Objection upheld.

Crimes Act 1900 (NSW)
Evidence Act 1995 (Cth) s 128
Family Law Act 1975 (Cth)

APPLICANT: Mr Rosington

RESPONDENT: Ms Rosington

INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

FILE NUMBER: SYC 6654 of 2015

DATE DELIVERED: 30 March 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Stevenson J

HEARING DATE: 16 March 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Christie SC

SOLICITOR FOR THE APPLICANT: Barkus Doolan Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Hodgson

SOLICITOR FOR THE RESPONDENT: Mills Oakley

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Longworth

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Legal Aid NSW

Orders

1. The objection of the mother to the subpoena issued by the Independent Children's Lawyer to the Commissioner of Police, New South Wales Police Service filed on 25 February 2020 is upheld in relation to all records held by the New South Wales Police Service including but not limited to statements, COPS entries, CIDS entries, JIRT records, Erisp transcripts, police notebook entries, intelligence reports, criminal history, criminal record of charges or convictions or antecedence and any or all other documentation from 1 August 2018 to present involving or in relation to Ms Rosington born on … 1975.

2. The objection of the mother to the subpoena issued on behalf of the father to the Commissioner of Police, New South Wales Police Service filed 26 February 2020 is upheld in relation to originals and/or copies of all records held by the New South Wales Police Service including but not limited to statements, COPS entries, CIDS entries, JIRT records, Erisp transcripts, police notebook entries, intelligence reports, criminal history, criminal record of charges or convictions, antecedence, court attendance notices and/or fact sheet and any and all other documentation involving or in relation to,

   ●        Ms Rosington born on … 1975

   ●        Ms Dean born … 1975

   ●        Ms Fry born on ... 1975.

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 Rosington & Rosington 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 SYDNEY

FILE NUMBER: SYC 6654 of 2015

Mr Rosington

Applicant

And

Ms Rosington

Respondent

And

Independent Children's Lawyer

Legal Aid NSW

REASONS FOR JUDGMENT

The proceedings

1. The parties to these proceedings, Mr Rosington and Ms Rosington, are locked in litigation concerning their twin children C and B.  The twins were born on … 2009 and are currently ten years of age.  The children were adopted by the parties at the age of ten months.

2. It is common ground that the mother was charged in 2019 with multiple counts of offences of dishonesty.  These charges extend over a period of several years.  She has pleaded not guilty and deposed that her criminal lawyers have advised that there will be no trial before late 2021 or early 2022.  It may be that the COVID19 pandemic will extend the period before the mother will face trial.

3. On 25 February 2020 the Independent Children's Lawyer ("the ICL") issued a subpoena to the New South Wales Police which, relevantly, sought production of the following:

   All records held by the New South Wales Police Service, including but not limited to statements, COPS entries, CIDS entries, JIRT records, ERISP transcripts, police notebook entries, intelligence reports, criminal history, criminal record of charges or convictions and antecedence and all and any and all other documentation from 1 August 2018 to present involving or in relation to:

   ●        C born … 2009

   ●        B born … 2009

   ●        Ms Rosington born … 1975

   ●        Mr Rosington born … 1968.

4. The father issued a similar subpoena on 26 February 2020 to the New South Wales Police.  On 5 March 2020 the mother filed a Notice of Objection to these two subpoenae.  This objection set out three grounds, which were summarised as follows by counsel for the ICL:

   a.That production/inspection would infringe upon the wife's privilege against self-incrimination ...

   b.That the wife's rights in her criminal proceedings will be prejudiced.

   c.That any jury pool might be affected by the publication of documents.

5. On 14 March 2019 the legal representative of the father applied for the following orders and directions:

   1.That the wife within 7 days of the date of these orders provide the Family Court, Sydney Registry the following:

   1.1the bail information and the bail acknowledgment form under the terms of the Bail Act 2013

   1.2a copy of the Court Attendance Notice

   1.3a copy of any Facts Sheet that outlines the charges that the wife has been charged with

   and Her Honour Justice Stevenson shall consider in chambers and rule on in chambers the release of those documents to the parties.

   2.No party shall inspect the documents in paragraph 1 without the leave of the court.

   3.Leave to re-list on 7 days.

   Notation

   DMatter listed for interim hearing on 30 April 2019 wherein anticipated final hearing shall be allocated.

6. Relevantly, on 29 March 2019 I made the following Orders:

   UPON APPLICATION made to the Court AND DEALT WITH IN CHAMBERS

   IT IS ORDERED THAT:

   1.Within seven days the wife will provide to the solicitors for the husband copies of the following:

   1.1.the bail information and the bail acknowledgement form under the terms of the Bail Act 2013

   1.2.copy of the Court Attendance Notice.

   2.Leave is granted to the husband to renew his application for a copy of the Facts Sheet upon the basis that he is in a position to satisfy the court that this material is necessary for the proper preparation of his case.

7. The father at no time has sought to exercise the leave granted on 29 March 2019 in relation to his application for a copy of the Facts Sheet.  He and his lawyers instead elected to issue a subpoena which sought the production, inter alia of the police Facts Sheet.

8. The written submissions of counsel for the ICL contended that "very little is known about [the charges] other than that they appear to be serious property-related crimes".  The Court Attendance Notice sets out details of the offences in relation to each count.  This document identifies the relevant section of the Crimes Act 1900 in relation to each offence, the dates thereof and a brief account of the alleged criminal conduct of the mother.  In these circumstances, I reject the submission of counsel for the ICL that "very little is known about the charges."

9. I also reject the submission of counsel for the ICL that the mother "could depose as to what potential sentences she might face were she to be found guilty of all of any of the charges."  A simple reference to the Crimes Act 1900 (NSW) would identify the range of potential penalties available to the sentencing judge in the event that the mother is convicted of all or some of the alleged offences. In my view, any such purported evidence from the mother would be a mixture of hearsay, speculation and unqualified opinion.

10. The written submissions on behalf of the father contained an assertion that the alleged accomplice of the mother has recently pleaded guilty to several offences of receiving benefits the subject of the charges.  There was no evidence to support this contention, other than solicitors' correspondence.  Even if this person has pleaded guilty to some charges, that fact would not assist the father or the ICL in establishing that the subpoenae have a legitimate forensic purpose.

11. The written submissions on behalf of the father contended inter alia as follows:

    11.The court, the father and the ICL should not have to rely on
    non-sworn material in correspondence to form a view about the number of charges being pursued and the timing of any trial.

    12.The offences all relate to dishonesty over a long period of time.  The question of credit is a live issue in the present proceedings.

12. In my view, documents generated by New South Wales Police would be unlikely to shed light on subsequent decisions by the Director of Public Prosecutions in relation to which of these charges may or not be pursued at trial.  In my view, it is equally unlikely that any police material would identify the timing of the mother's trial.

13. As to the question of credit, it seems to me that this suggested "legitimate forensic purpose" rests on an assumption that the mother will be cross-examined in these proceedings in relation to her involvement in the criminal activities alleged against her.  Obviously, the mother would have a right to invoke the protections afforded to her by the Evidence Act 1995 (Cth). I do not accept that the issue of a certificate pursuant to section 128 of the Evidence Act would be an adequate means of dealing with this situation. In my assessment, there is a real inherent risk of unfairness to the mother in her being required to respond to such questions in the parenting hearing ahead of her criminal trial, even with the benefit of a section 128 certificate.

14. For these reasons, I conclude that neither the father nor the ICL established that the subpoena to the New South Wales Police Service has a legitimate forensic purpose insofar as the documents sought relate to the criminal charges against the mother.  I will uphold the objection of the mother to production of documents by New South Wales Police to that extent.

I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Stevenson delivered on 30 March 2020.

Associate: 

Date:  30 March 2020