Seaward and MacDuff (No 2)

[2012] FamCA 730

FAMILY COURT OF AUSTRALIA

SEAWARD & MACDUFF (NO. 2) [2012] FamCA 730

FAMILY LAW – PROCEDURAL – Where leave sought to serve subpoena on parties’ minor child to require the child to give evidence in the proceedings – Where proceedings concern parenting matters – Where child is subject of the proceedings – Best interest considerations – Leave refused – Subpoena rejected.

Family Law Act 1975 (Cth) Division 12A

APPLICANT: Mr Seaward

RESPONDENT: Ms MacDuff

INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

FILE NUMBER: SYC 2177 of 2011

DATE DELIVERED: 21 May 2012

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Ryan J

HEARING DATE: 21 May 2012

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr A Ladopolous

SOLICITOR FOR THE APPLICANT: David H Cohen & Co

COUNSEL FOR THE RESPONDENT: Ms T Messner

SOLICITOR FOR THE RESPONDENT: Abrams Turner Whelan

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms K Reynolds

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Brian Samuel & Associates

Orders

1. The applicant father’s oral application to file Subpoena for B to give evidence is rejected.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Seaward & MacDuff (No 2) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2177 of 2011

Mr Seaward

Applicant

And

Ms MacDuff

Respondent

REASONS FOR JUDGMENT

1. These reasons were delivered orally.

2. On the application of the father I am asked to order that a subpoena be issued to the parties’ daughter, B, so that she gives evidence in these parenting proceedings.  B is too young to swear an affidavit and leave is necessary, not only in relation to the subpoena but a number of issues before she could give evidence.  The Court does not often find itself asked by a parent to require a child, who is the subject of the proceedings, to give evidence.  It is accepted that whether children are required to give evidence in proceedings where their parents are in conflict about them, is a something to be approached cautiously and with that child’s interests at the forefront.

3. There is evidence in the single expert’s report about how B has struggled in relation to her parents’ dispute.  Indeed, also in the father’s affidavit, for example, under the headings “Recovery Order” and “Manipulating Children”, evidence from him about the difficult position he says B has found herself in as this litigation has continued. 

4. According to counsel for the father of particular relevance to this application is B’s role in events which ultimately resulted in his time with the children being supervised.  The Court will receive evidence of interviews by the single expert, I apprehend probably also police, in relation to discussions by B with those charged with responsibility to investigate what occurred between the father and the children in relation to these matters. 

5. One of the strengths of Division 12A of the Family Law Act 1975 (Cth) is that material of that type can be received without the subject children being required to directly give evidence and submit to cross-examination. I am not satisfied that, in these circumstances, the interests of justice require that the father is granted leave to call B to give evidence in his case. To require her to do so would place her at the heart of this bitter dispute. It would certainly exacerbate the distress which the single expert’s report would indicate she presently feels.

6. The application for leave to issue a subpoena for her to give evidence is refused. 

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 21 May 2012.

Associate:     

Date:              21 May 2012