SMITH & GARDNER (No.2)
[2015] FCCA 2810
•19 October 2015
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SMITH & GARDNER (No.2) | [2015] FCCA 2810 |
| Catchwords: PRACTICE AND PROCEDURE – Representation – where applicant objects to respondent’s representation by Legal Aid Commission – allegations without foundation. PRACTICE AND PROCEDURE – Subpoena – objection to subpoenas – allegations of fraud – abuse of process – subpoenas set aside – subpoena held defective – applicant restrained from issuing any further subpoena without leave of the Court. PRACTICE AND PROCEDURE – Transfer to Family Court – length and complexity of matter – interests of the administration of justice – whether the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding. |
| Legislation: Family Law Act 1975 (Cth), ss.60B, 60CA, 60CC, 61DA, 65DAA Federal Circuit of Australia Act 1999 (Cth), s.39 |
| Cases cited: Botany Bay Instrumentation & Control Pty Ltd & Ors v Stewart [1984] 3 NSWLR 98 Cahill & Cahill (No.2) [2013] FamCA 453 Commissioner for Railways v Small (1938) 38 SR (NSW) 564 R v Baines [1909] 1 KB 258 Smith & Gardner [2015] FCCA 2100 |
| Applicant: | MR SMITH |
| Respondent: | MS GARDNER |
| Named Person: | SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
| File Number: | SYC 3823 of 2015 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 12 October 2015 |
| Date of Last Submission: | 12 October 2015 |
| Delivered at: | Sydney |
| Delivered on: | 19 October 2015 |
REPRESENTATION
| Applicant: | In person |
| Counsel for the Respondent: | Mr Sperling |
| Solicitors for the Respondent: | Legal Aid NSW |
| Counsel for the Named Person: | Mr McGorey |
| Solicitors for the Named Person: | Crown Solicitor's Office (NSW) |
ORDERS
The oral application by the Applicant that the Legal Aid Commission of New South Wales should be restrained from representing the Respondent is dismissed.
The subpoena issued on 1 September 2015 to Ms S Manager Casework St George CSC is set aside.
The subpoena issued on 31 August 2015 to The Proper Officer(s) Western Union Worldwide and Western Union Australia and Western Union Fiji and Western Union Bulgaria and Western Union New Zealand is set aside.
The Applicant is restrained from issuing any further subpoena in these proceedings without leave of the Court.
The Application in a Case filed on 7 August 2015 is discontinued.
UNTIL FURTHER ORDER the child [X] born [omitted] 2015 is to live with the Respondent mother who is to have sole parental responsibility for the child.
Subject to any Application for Costs, which must be made within twenty-eight (28) days of the date of this Order, the matter is transferred to the Family Court of Australia at Sydney under the provisions of section 39 of the Federal Circuit of Australia Act 1999.
IT IS NOTED that publication of this judgment under the pseudonym Smith & Gardner (No.2) is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 3823 of 2015
| MR SMITH |
Applicant
And
| MS GARDNER |
Respondent
| SECRETARY DEPARTMENT OF FAMILY AND COMMUNITY SERVICES |
Named Person
REASONS FOR JUDGMENT
Application
The substantive proceedings are for parenting orders in respect of the parties’ child, [X], born on [omitted] 2015, who is currently in the care of the mother.
The Applicant brought an urgent Application seeking urgent ex parte orders, not all of which were granted, but I did make Orders that:
a)The parties were restrained from removing or attempting to remove the child from the Commonwealth of Australia;
b)The Australian Federal Police were requested to give effect to the order by placing the child’s name on the Family Law Watch List;
c)The Australian Passport Office was requested to place the child’s name on Child Alert and not to issue any passport for him;
d)A Commonwealth Information Order was issued; and
e)The Application was adjourned to 24 August 2015 for mention[1].
[1] Smith & Gardner [2015] FCCA 2100
As it turned out, I was away due to illness and the Application was administratively adjourned to 12 October.
Interlocutory Applications
There are several interlocutory applications before the Court.
First, the Applicant has forwarded a submission to the Court objecting to the Legal Aid Commission of New South Wales appearing for his wife, the Respondent, and taking issue with the Commission’s decision to brief counsel to appear.
Second, the Secretary of the New South Wales Department of Family and Community Services has objected to a subpoena served on one of the Department’s employees, Ms S, requiring her to attend Court and produce documents.
Third, the Applicant has issued a subpoena addressed to Western Union Worldwide and Western Union Australia, Fiji, Bulgaria and New Zealand seeking financial records back to 2009. The Respondent has objected to this subpoena.
The Respondent has filed a Response seeking orders that:
a)The interests of the parties’ infant child, [X], born on [omitted] 2015, should be independently represented by a lawyer under the provisions of s.68L of the Family Law Act 1975 (Cth);
b)The substantive matter should be transferred to the Family Court of Australia at Sydney;
c)The Respondent mother should have sole parental responsibility for the child [X];
d)The child should live with the mother; and
e)The child should spend no time and have no communication with the father.
Mr Sperling of Counsel, for the Respondent, told the Court that the Order for an Independent Children’s Lawyer was not being pressed at that time. As no mention was made of the Order that the child spend no time or have no communication with the father, I have assumed that this Order was not being pressed at this time also.
The father also filed an Application in a Case on 7 August 2015 seeking that his mother should be joined as an Applicant, but he told the Court that he did not intend to proceed with that Application and I have taken this to mean that the Application has been discontinued.
Representation of the Respondent
The first matter to be decided is whether the Legal Aid Commission should be restrained from continuing to act for the mother. As the father claims that the mother does not have the capacity to instruct lawyers due to her mental illness, if the Court is persuaded to accede to that application, then the proceedings would need to be adjourned so that the mother could obtain other representation. Clearly, if the mother does not have the capacity to instruct lawyers to act for her, she would hardly have the capacity to conduct proceedings on her own behalf as a self-represented litigant.
The Applicant relies on the following documents:
a)his affidavit of 1 September 2015, to which he has annexed:
i)a copy of an affidavit sworn 25 March 2015 filed in proceedings in the General Federal Division of this Court between himself as the Applicant and various entities and individuals connected with Sydney Trains and Transport for NSW; and
ii)a transcript of proceedings before the Independent Commission Against Corruption commencing on 21 September 2006;
b)a Submission addressed to the Duty Registrar of the Federal Circuit Court dated 6 October 2015 and headed “Re 1. Annulment/Uplifting of Documents Request: Clearly Illegal Representation on a False Pretext with multiple conflicts of interest for mentally ill Respondent in case SYC 3823/2015; and 2. Illegal attempt by Ms B and bullying attempt; and 3. Objection to use my mentally ill wife in a smear campaign against me.[2]
[2] Applicant’s Submission 6 October 2015
He has attached copies of correspondence to that submission.
In his affidavit of 1 September 2015, the Applicant sets out at paragraphs 4 and 5 why he opposes any involvement by Legal Aid NSW in these proceedings:
4. Based on all of the above the Applicant is 100% certain that any involvement by a NSW Government department, agency, body, government owned corporation or any other entity part or related to NSW Government to this case will be:
4.1 counter-productive
4.2 very undesirable
4.3 it is likely to have very substantive adverse consequences for the Applicant, his family – his wife and elderly mother and their now 4 month old baby.
5. Thus the Applicant swears on oath that it is against human nature to allow any NSW Government entity like the NSW Legal Aid Commission to act as a representative this case.[3]
[3] Affidavit of Mr Smith 1.9.2015
In his submission, the Applicant refers to a “clearly illegal” attempt by the Executive Director, Family Law of Legal Aid NSW, Ms B, to brief her “former colleague and former subordinate”, Clyllin Sperling, barrister, to appear to mention the matter on behalf of the Respondent. His claim is that:
This is a clear conflict of interest and I suspect that both of them stand to profit from it at the expense of the Australian tax payers”[4].
[4] Ibid page 1 paragraph [1]
The Applicant claims that his wife is incapacitated by mental illness and is unable to consider the consequences of her actions. Further, he submits that:
Due to her incapacity she is unable to sign legal documents, and should not be pressured or bullied into signing any documents by any one including Ms B and Dina Lioumis[5] from Legal aid; and Ms S and her colleagues from Family and Community Services.[6]
[5] Ms Lioumis is the solicitor on the Record for the Respondent.
[6] Applicant’s Submission pages 1 and 2 at [2]
The Applicant further claims that his wife “is not giving them instructions – they are telling her what to do”[7]. He objects to anyone filing documents “presumably” on his wife’s behalf and challenges the authenticity of the Notice of Address for Service filed on her behalf on 24 August 2015. He claims that his wife did not appear at Court on 24 August and that she has to attend the Court Registry and file the Notice herself – “in her present state of mental illness that is a must”[8]. He submitted that she must attend the Court personally and satisfy the Court that she understands the consequences of her actions.
[7] Ibid page 2 at [3]
[8] Ibid page 2 at [4]
In his Submission, the Applicant goes on to make allegations of dishonesty against a solicitor who previously acted for him in these proceedings for a short while. He has reported the Solicitor to the Legal Servicers Commissioner for disciplinary investigation and he attaches a copy of a letter of reply from the Commissioner dated 9 September 2015.
It is unnecessary for the purpose of these proceedings to publish the name of the solicitor or the nature of the allegations against him.
The Applicant objected to the appearance of Mr Sperling because:
a)His wife does not know what a barrister is and would not have asked for one;
b)His wife has no money to pay a barrister;
c)He suspects that the barrister “is protecting someone with influence”;
d)Ms B and Mr Sperling “stand to profit from this”; and
e)The barrister is also appearing for Ms S of Family and Community Services[9].
[9] Applicant’s Submission page 3 at [7]
Mr Sperling of Counsel did not appear for Ms S. The Secretary of the Department of Family and Community Services instructed the Crown Solicitor who briefed Mr McGorey of Counsel to appear.
The Applicant went on to speculate that Mr Sperling was being paid up to $30,000.00 to appear on the mention.[10]
[10] Ibid page 3 at [8]
Further in his submission, the Applicant claimed that there is “a clear conflict of interest with any NSW government agency acting in this case for [Ms Gardner][11]other than ICAC itself”[12]
[11] i.e. the Respondent
[12] Ibid
The Applicant further submitted that his wife could have pro bono lawyer act for her which would remove “any opportunity for misappropriation of tax payer’s money which is in the public interest”[13].
[13] Ibid page 4 [10]
In his oral submission to the Court, the Applicant submitted that:
a)the Respondent’s solicitor, Ms Lioumis, had submitted a false affidavit;
b)he will be applying to add Ms B of Legal Aid NSW and Ms O of the Department of Family and Community Services as Respondents to his application;
c)Legal Aid NSW were not appointed by his wife – “Legal Aid have appointed themselves”;
d)There are multiple conflicts of interest by Legal Aid, especially because Mr Sperling is a member of the Legal Aid Review Committee;
e)There is a “smear campaign” against him;
f)Legal Aid have “committed a couple of crimes”;
g)Ms B and Mr Sperling stand to profit from the proceedings at the expense of the taxpayers;
h)He does not object to the Independent Commission Against Corruption or Health New South Wales being part of the proceedings;
i)His wife is not eligible for legal aid because she has not lived in Australia for two years;
j)He wishes to have leave to subpoena Ms Lioumis to give evidence about how she produced certain documents; and
k)There should be proceedings against Legal Aid for the tort of negligence and the tort of injurious falsehood.[14]
[14] Taken from the Transcript of the proceedings on 12 October 2015
Mr Sperling submitted that there is no foundation for the Applicant’s claim of corruption and the Applicant has not provided any information to substantiate his allegation of a conflict of interest. Further, he submitted that the Applicant’s submission that the solicitor who prepared the mother’s documents was not acting on her instructions was a serious matter not supported by any evidence.
Mr Sperling said that his fees for appearing for the Respondent were those provided by the Legal Aid scale of fees, which can be found on the Internet. There was not a scintilla of evidence to show why there is a conflict between a solicitor properly carrying out the duties of a solicitor-client relationship and his being briefed to appear.
The Applicant objects to the Legal Aid Commission of New South Wales acting for the Respondent in this matter because the Commission is an organisation of the Government of New South Wales which is attempting to use his wife in a smear campaign against, apparently arising from proceedings before the Independent Commission Against Corruption relating to matters involving Sydney Trains. To this end, he claims, lawyers employed by Legal Aid have appointed themselves to act for his wife, even though she is not entitled to a grant of Legal Aid, and have created false documents to smear his name.
This proposition needs only to be stated to show how fanciful it is. It is entirely without foundation. The Applicant has produced no evidence whatsoever to support this fanciful allegation.
The Applicant has accused Ms B of Legal Aid and Mr Sperling of Counsel of not only a conflict of interest but of acting in concert to enrich themselves at the taxpayers’ expense. It is an allegation, to use the Applicant’s own term, of corruption.
There is not a shred of evidence to support that claim. It is a matter of public knowledge that Mr Sperling was at one stage employed by Legal Aid NSW before he went to the Bar. That does not in any way preclude him from accepting a brief from Legal Aid nor does it any way preclude Legal Aid from briefing him in matters in his particular sphere of experience and expertise. There is no suggestion that he would act in any other than an independent way in as a member of the New South Wales Bar. The fact that he is a member of one of the various Legal Aid Review Committees is entirely irrelevant and does not raise any conflict of interest at all.
It is a matter of public knowledge that Legal Aid has a scale of fees that are paid to counsel. It is also a matter of public knowledge, and evident from the letter from Ms B, a copy of which is attached to the Applicant’s submission, that she is a salaried employee of the Legal Aid Commission.
For the Applicant to submit, entirely without evidence that:
a)Ms B had somehow contrived to pay Mr Sperling the sum of $30,000.00 to appear in these proceedings; and
b)That she and he in some way stood to profit from this transaction;
is not only a ludicrous suggestion but a scurrilous accusation. I reject it completely.
There is no evidence of any wrongdoing by Ms B and Ms Lioumis of Legal Aid or of Mr Sperling of Counsel. There is no conflict of interest in the representation of the Respondent by Legal Aid NSW. There is no reason why Legal Aid NSW should not continue to act for the Respondent. There is no reason why Mr Sperling should not continue to hold the brief to appear for the Respondent. The oral application by the Applicant that Legal Aid NSW should be restrained from acting for the Respondent or from briefing Mr Sperling of Counsel will be dismissed.
The Subpoena to Ms S
On 1 September 2015 the Applicant issued a subpoena addressed to
Ms S, an officer of the Department of Family and Community Services, requiring her to attend Court to give evidence and produce documents on 12 October 2015. The Secretary of the Department objects to this subpoena as an abuse of the process of the Court and seeks to have it set aside.
Mr McGorey of Counsel has appeared for the Department, instructed by the New South Wales Crown Solicitor. Ms S attended Court in answer to the subpoena, but I excused her from further attendance on the day. The matter was in the list for mention only and, whether or not the objection to the subpoena was successful, there was no prospect that Ms S would be cross-examined that day.
The subpoena had a history. On 6 August 2015 the Applicant issued a subpoena to produce documents addressed to four different recipients at four different addresses:
1. Mr S CEO Medicare Australia
2. Incumbent Dr F Director-General of New South Wales Health
3. Ms M Director-General NSW Community Services
4. Mr C, Secretary NSW Family and Community Services.
The Schedule to the subpoena contains five separate lists of books, documents and things, numbered 1 to 5, not all of which are relevant to this Application. Curiously, whilst one is specifically directed to the CEO Medicare, three are directed to the Director General NSW Health. None is specifically directed to either the Director General or the Secretary NSW Family and Community Services.
Those that appear to be relevant are:
4. As provided by the Family Law Act 1975 the Director General NSW Health is to furnish the Registry Manager at the Federal Circuit Court at Sydney information about the child [X] born [omitted] 2015 and the child’s mother Ms Gardner born [omitted] 1987, and the child’s father Mr Smith born [omitted] 1980 with information that is contained in or comes into the records of NSW Community Services.
5. As provided by the Family Law Act 1975 the Director General NSW Health is to furnish the Registry Manager at the Federal Circuit Court at Sydney information about the child [X] born [omitted] 2015 and the child’s mother Ms Gardner born [omitted] 1987, and the child’s father Mr Smith born [omitted] 1980 with information that is contained in or comes into the records of NSW Families & Community Services – with focus on Child Protection Records.
It would appear that the subpoena is defective in its form in that it is addressed to four different recipients at four different addresses. Rule 15A.02 at subrule (3) refers to “the person subpoenaed” which contains the implication that the subpoena must be addressed to one person at a specific address or occupying a specific office or position. This document appears to be four separate subpoenas in one and, in my opinion, is defective and should be set aside for that reason alone.
Notwithstanding the fact that there are four separate recipients for this subpoena, as pointed out in paragraph [38] above, only two of the recipients are required to produce any books, documents or things, namely the CEO Medicare and the Director General NSW Health. This may be a clerical error.
In any event, the subpoena does not on its face require either the Director-General NSW Community Services or the Secretary NSW Family and Community Services to produce anything to the Court other than a copy of the subpoena. It is only the Director General NSW Health who is required to produce any documents from the NSW Department of Community Services.
Nevertheless, the Department of Family and Community Services did not take this point but produced documents in answer to the subpoena.
What then happened is that on 31 August 2015 the Applicant filed a Notice of Objection to the inspection or copying of some or all of the documents produced by the Department. It is, to say the least, curious for the person who sought the issue of the subpoena to object to the inspection or copying of the documents which he sought in his own subpoena.
In any event, the Applicant objected to the inspection or copying of the documents produced for these reasons:
Information provided by Child Protection & Communities NSW is:
(1) Fraudulent (2) False (3) Misleading (4) Defamatory (5) Prejice[15]- May Distroy[16] The Whole Case!
[15] sic
[16] sic
The Applicant then on 1 September 2015 caused to be issued a subpoena addressed to Ms S, who is employed by the Department as a Manager Casework.
The subpoena requires Ms S to attend Court on 12 October 2015 not only to produce a copy of the subpoena, but to give evidence about a number of issues:
2. In relation to the documents produced by Ms S and Mr M to the Federal Circuit Court under the subpoena issued on 6 August 2015 you are to appear with documents and give evidence as follows:
2.1 Are you legally qualified? – the documents produced contain legal information, legal opinion and legal terms have been quoted with substantial consequences.
2.2 Are you medically qualified? – the documents produced contain medical information, medical terms and medical opinion with substantial consequences.
2.3 Are you a qualified Psychologist? – the documents produced contain information that can be only certified by a qualified and experienced special Psychologist or Psychiatrist.
2.4. Are you a qualified investigator specialist in criminal investigations under NSW and New Zealand law? – the documents produced contain legal terms, legal opinions of very substantial consequences.
2.5 Are you a qualified or experienced specialist in internal investigations and corruption? Are you competent in the workings of the Independent Commission Against Corruption on NSW during an active, current investigation? – the documents produced contain derogatory references to an ICAC/ICAC supported investigation, and ICAC case in February 2015.
2.6 Are you qualified in Australian Immigration law and the enforcement of that law?- the documents produced contain a request for information from Department of Immigration and Border Protection about the whereabouts of an Investigator in an ICAC/ICAC supported case.
3. You are to give evidence how these documents were produced and provide proof in documents to support that.
4. You are to give evidence about the continuity of the custody of the documents produced.
5. You are to give evidence about the validity, accuracy, truthfulness, comprehensiveness and honesty of the documents produced.
6. You are to give evidence about the purpose of the documents produced and your intentions for producing them.
7. You are to give evidence about your motivation in your involvement with MS GARDNER, baby [X] and his father MR SMITH.
8. You are to give evidence about your purpose in the above involvement, any instructions received by your superiors, colleagues or any other persons and their purpose.
The Applicant has affirmed an affidavit on 1 October 2015 in which he makes allegations about the Department of Family Community Services and the Respondent’s father. Paragraph [1] of the affidavit refers to the Department and it is reproduced in full here:
1. At the heart of this case is the tort of negligence and the damages caused which have resulted in the current mental health disaster.
Family & Community Services NSW (FACS) have been negligent in using the DVSAT assessment tool (in Annexure A) to detect the mental illness of my wife Ms Gardner and have left it untreated.
Far worse, they have interfered and acted in a counter-productive way to hinder her treatment by her treating doctor who specialises in women’s health and mental health. Ms Gardner’s condition has inevitably worsened with the chronic stress, diabetes during pregnancy, depression before, during and after pregnancy, uncertainty, living and uncertain, unsettled and unstable life in temporary accommodation without family support with a 2 month old baby.
The Domestic Violence Safety Assessment Tool is a mandatory tool, as shown in the FACS diagram attached in Annexure B, which FACS have been negligent to use and have taken Ms Gardner on her word without checking with her treating doctor or her sole carer for the past 6 years myself her husband. Attached in Annexure A is the missing half of the work which negligently has not been completed by FACS.[17]
[17] Affidavit of Mr Smith 1.10.2015 at paragraph [1]
The Applicant told the Court that there is a clear case of negligence in that his wife had sought to kill herself and he had spent about $30,000.00 trying to cure her in Seoul, South Korea, in Bulgaria, in New Zealand and in Australia but the progress had been “sort of hindered quite badly both by social workers and by other negligent people”. Documents produced to the Court by the Department contain false information. The documents produced by Ms S, he said, were false:
There’s a problem with quality control. Those documents are false. She has a duty of care. Before producing documents to a Family Court which describe the father as a monster (1) to check and (2) to write a note if she knows the information has not been checked, that it’s not checked, that it’s something that we got, a gossip or whatever. I have a right to cross-examine and to find out where that information came from.
Now your Honour, the smear campaign against me is nothing new. It started in 2009. This is not the first. It won’t be the last.[18]
[18] Transcript 12.10.2015 page 12 at 34-42
The Applicant went on to state that “the people from Family and Community Services have committed a couple of crimes…[19]
[19] Transcript 12.10.2015 page 14 at 43-44
Counsel for the Department of Family and Community Services, Mr McGorey, submitted that the Department had a sufficient interest in the subpoena and standing to make the application to set it aside (Cahill & Cahill (No.2)[20] at [8]; Botany Bay Instrumentation & Control Pty Ltd & Ors v Stewart[21] at 102).
[20] [2013] FamCA 453
[21] [1984] 3 NSWLR 98
Mr McGorey submitted that the subpoena is an abuse of process and should be wholly set aside. The use of the Court’s process to obtain information or evidence must be genuinely directed to assisting the determination of an issue in dispute and not for some illicit or harassing type of reason (Cahill & Cahill (No.2) at [17]). Further, the Court is entitled to inquire whether its process has been issued with the object and expectation, on reasonable grounds, of obtaining evidence that can be relevant to the issue in dispute (R. v Baines[22] at 261).
[22] [1909] 1 KB 258
The Court may act to control its proceedings and prevent abuses of its process (Cahill & Cahill (No.2) at [12]; Botany Bay Instrumentation and Control Pty Ltd & Ors v Stewart at 100-101).
It was submitted that the evidence that Ms S could give is not relevant to, nor could it assist the Court, in determining the parenting issues before it. Further, the subpoena seeks production by Ms S that are not in her possession or control but are in the possession or control of the Department of Family and Community Services. However, the documents sought are not defined with reasonable particularity to enable their identification. The obligation to produce is thereby oppressive (Commissioner for Railways v Small[23] at 573).
[23] (1938) 38 SR (NSW) 564
The documents sought by the Applicant have no relevance to the parenting issue to be decided by the Court, it was submitted.
In my view, the subpoena to Ms S stems from a misconception by the Application as to the nature of the proceedings. It is an Application for parenting Orders which has been met by a Response, also seeking parenting Orders. The parties to the proceeding are the husband and the wife. The Secretary of the Department of Family and Community Services is not a party and there is no basis for the Secretary to be added as a party.
The Application and Response are for orders that can be made under the Family Law Act 1975 (Cth). This is not an action in tort.
Ms S produced documents held by the Department in relation to the matter as sought by the subpoena. The Applicant clearly does not like the documents produced by his subpoena and wishes to establish that they are false. There is no basis for that submission. He has produced no evidence whatsoever. His affidavit of 1 October consists solely of assertions without fact.
The questions sought to be asked of Ms S in cross-examination as to her qualifications in law, medicine and psychology are irrelevant and unnecessary. There is no evidence that she is the author of the documents or had any hand in their preparation.
The Applicant’s views about proceedings before the Independent Commission Against Corruption are entirely irrelevant to the issues that are to be decided by the Court under the Family Law Act 1975.
The subpoena issued on 1 September 2015 seeks information that is irrelevant to the matters in issue before the Court and it is oppressive. The subpoena is clearly an abuse of the process of the Court and will be set aside in its entirety.
The Submission to Western Union (Worldwide) & Others
The Respondent seeks to set aside a subpoena issued on 31 August 2015 to The Proper Officers Western Union Worldwide, Western Australia, Western Union Fiji, Western Bulgaria and Western Union New Zealand as an abuse of process.
The subpoena seeks production of the following documents:
1. Provide thorough records of al WESTERN UNION payments made for the period 1 October 2009 – present including:
2.1[24] Money received by MR SMITH DOB: [omitted] 1980 from Bulgaria to Fiji, and from Bulgaria to Australia; and
2.2 Money sent by MR SMITH DOB: [omitted] 1980 from Bulgaria to Fiji; and from Australia to Fiji and from New Zealand to Fiji to the following people:
2.2.1 MS GARDNER, Note: not all or full middle names are used every time, abbreviations such as [omitted] or similar are to be expected and included, DOB: [omitted] 1987 citizen of Fiji; and
2.2.2 [V. S.], DOB: citizen of Fiji; and
2.2.3. MR G, who also uses the name MR G with DOB: [omitted] 1951 (based on memory, may not be 100% accurate DOB) citizen of Fiji.
2.3 Money received by MS GARDNER, Note: not all or full middle names are used every time, abbreviations such as [omitted] are to be expected and included, DOB: [omitted] 1987 citizen of Fiji. Particular attention is to be paid with payments from MR SMITH, listed above.
2.4 Money sent by MS GARDNER, Note: not all or full middle names are used every time, abbreviations such as [omitted] are to be expected and included, DOB: [omitted] 1987 citizen of Fiji, from BULGARIA to FIJI and from AUSTRALIA to FIJI, and from NEW ZEALAND to FIJI. Particular attention is to be paid with payments made to MR G, who uses the name MR G from above, [V. S.], and any other persons from [villages omitted] near [omitted], Fiji Islands.
2. Particular attention is to be paid to the thoroughness, comprehensiveness and accuracy of all subpoenaed WESTERN UNION records due to proposed private prosecution for suspected fraud of the Commonwealth of Australia, the State of New South Wales and several private citizens, including but not limited to a claim for Family Tax Benefit from Centrelink, Australian Government under suspicious circumstances; and suspected extortion of money over a period of the past 6 years starting from 1 October 2009.
[24] sic
The Applicant’s affidavit of 1 October 2015 at paragraph [2] refers to the Applicant’s concerns about the Respondent’s father and is set out in full here:
Mental Illness does not explain the use of fraud – and fraud has been used on multiple reoccurring and ongoing occasions.
For that I held responsible Ms Gardner’s father Mr G and his upbringing as well as his habit to call her 7 times per day, very day to give her instructions what to do! Credit card fraud records of 12 unauthorised payments from my NAB VISA cards for NZD$260.00 for phone calls to her father in about 1 month since June 2015 are clear evidence. The fact that at some point there were 8 families living under one roof in Fiji with only 1 having a guaranteed full time job in the laundry at Intercontinental and two on call waitress/waiters explains why he is always in debt and beyond desperate but do not account for the vulgar and cruel nature of his actions against me, particularly extortions of money. There can be no doubt that he suffers of a more advanced stage of the same mental illness Emotionally unstable personality disorder, Impulsive type and Borderline type. That he is very shrewd when he is not suffering from one of his fits which are situational is also beyond any doubt.[25]
[25] Affidavit of Mr Smith 1.10.2015 at [2]
The Respondent has objected to the subpoena on these grounds:
We submit documents sought to be produced are not relevant to parenting proceedings.
The documents may contain confidential information regarding the respondent.
The Applicant submitted:
More specifically, your Honour, there is baby payments which have been given through fraud from Centrelink to my wife. That has been organised by the lady who didn’t want to be cross-examined and she has signed that in her subpoena. Now, half of the money for a family tax benefit goes to the father and half to the mother. The mother cannot apply form that payment without the consent of the father and his tax file number. I have not given my tax file number, neither my consent. The only way to get that money is to claim that she isn’t partnered. However, you know, I’m not dead. She is still partnered.
The money should have been spent on the baby in Australia. Half of that is for the mother and half of it for me. If all of it is going to Fiji, we have a bit of a problem here: (1) the Commonwealth has been defrauded by a Family and Community Services employee and (2) the money has been stolen and has gone to Fiji.[26]
[26] Transcript 12.10.2015 page 16 at 1-13
It was put to the Applicant by the Bench that the subpoena seeks records for the period of 1 October up to the present and not too much of that could be in respect of the money for the baby, as the baby is only a few months old. The Applicant replied:
But it reveals a pattern of money flowing into Fiji to support my wife’s family, money being sent by me, my mum from Bulgaria, from New Zealand, from Australia, from wherever I have lived, and it shows that there’s no money going back in the opposite direction. So there is kind of a river of money flowing into her father and there is not a cent going back.[27]
[27] Ibid at 38-42
It was put to the Applicant by the Bench the fraud against Centrelink seems to be outside the scope of an application for parenting orders. The Applicant replied:
Sure. Yes. I don’t claim that it is. It could be the Federal Court of Australia or another court that has the jurisdiction over that.[28]
[28] Ibid page 17 at 10-11
In my view, it is not just the Applicant’s concession in Court that satisfies me that the subpoena is an abuse of process, but the very wording of the subpoena itself:
…due to proposed private prosecution for suspected fraud of the Commonwealth of Australia, the State of New South Wales and several private citizens, including but not limited to a claim for Family Tax Benefit from Centrelink, Australian Government under suspicious circumstances; and suspected extortion of money over a period of the past 6 years starting from 1 October 2009.
The Application before the Court is an Application for parenting orders relating to a child who was born on [omitted] 2015. The Application has nothing to do with any proposed prosecution for fraud of the Commonwealth of Australia or the State of New South Wales over a period of six years commencing on 1 October 2009.
The subpoena is an abuse of the Court’s process and it will be set aside in its entirety.
Orders sought by the Respondent
The Respondent, in her Response filed on 8 October 2015, seeks the following interim orders:
10. That the matter be transferred to the Family Court of Australia at Sydney.
11. That the Mother have sole parental responsibility for [X].
12. That [X] live with the Mother.
The two other interim orders sought were not pressed.
Mr Sperling submitted that the Court should make the interim parenting orders sought by the mother as the father in his documents has not sought any order that the child should live with him, either in his Applications or from the Bar table.
The Court, when making parenting orders, must consider the matters referred to in Part VII of the Family Law Act 1975, including sections 60B, 60CA, 60CC, 61DA and 65DAA. Section 60CA provides that the Court must regard the best interests of the child as the paramount consideration, and section 60CC sets out the way that the Court determines what is in a child’s best interests. Section 61DA relates to the presumption that it is in a child’s best interests for the child’s parents to have equal shared parental responsibility for the child, but that presumption does not apply in cases where there are reasonable grounds to believe that a parent of the child has engaged in abuse of the child or family violence.
The primary considerations set out in s.60CC(2) are:
a)the benefit to the child of having a meaningful relationship with both of the child’s parents; and
b)the need to protect the child from physical or psychological harm from being subjected to or exposed to, abuse neglect or family violence.
The Court is required by subsection 60CC(2A) to give greater weight to the consideration set out in paragraph (2)(b) of s.60CC(2).
This is a case where the mother has made allegations in her affidavit of violence by the Applicant towards her, both in Australia and New Zealand. She deposed that on 13 June 2015 after the Applicant had punched her on several occasions the day before she rang the DV Hotline and sought advice. When she realised that the Applicant had overheard her speaking on the telephone, she ran to her neighbour’s house and asked her neighbour to call the Police. When the Police arrived she left with the Police, taking the child with her. She stayed in a hotel arranged for her by the Police for two days until she could obtain a place in a women’s refuge. A Provisional Apprehended Domestic Violence Order was issued by the Police at [K] on 13 June 2015, requiring the Applicant to attend [K] Local Court on 18 June.
On 18 June 2015 the Local Court at [K] made an Interim Apprehended Domestic Violence Order naming her and the child as the protected persons. A copy of that Order is annexed to the mother’s affidavit. The final hearing of the Application, which was scheduled for 7 September did not proceed but was listed before the Court on 2 October 2015 to set a fresh hearing date.
The Applicant referred to the Application for a Provisional Apprehended Violence Order in his affidavit filed 15 June 2015 in this way:
AVO put in place – Fraud – investigated after alerting the NSW Police Integrity Commission by NSW Deputy Premier/Police’s Office Troy Grant – Alexandra T: (not published).
The Applicant did not mention the Interim Apprehended Violence Order made by the Local Court on 18 June when he gave evidence in the earlier proceedings before me on 20 July 2015.
In my view, the allegations of family violence and the very young age of the child support the making of interim parenting Orders in favour of the mother as she seeks. Until further Order the child will live with the mother and she will have sole parental responsibility for him. The provisions of s.65DAA of the Act do not apply.
The future progress of this matter
The Applicant has issued a total of five subpoenas to date. Under Rule 15A.05, a party must not request of more than 5 subpoenas in a proceeding unless the Court directs otherwise. As two of his five subpoenas have been set aside as an abuse of the process of the Court and his subpoena has been held by me to be defective in its form, I propose to order that the Applicant should be restrained from issuing any further subpoena without leave of the Court.
The Respondent also applies for the proceeding to be transferred to the Family Court, because of its complexity. It is the case that each party makes serious allegations against the other in respect of mental illness. It would seem to me that this proceeding will take a considerable amount of time to hear to finality and is more suited to the Family Court of Australia. I have had regard to the interests of the administration of justice and I am not satisfied that the resources of the Federal Circuit Court are sufficient to hear and determine the proceeding.
I propose to transfer the proceeding to the Family Court under the provisions of s.39 of the Federal Circuit Court of Australia Act 1999 (Cth).
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Associate:
Date: 19 October 2015
0
2
4