Syms and Syms (No 2)
[2020] FamCAFC 192
•7 August 2020
FAMILY COURT OF AUSTRALIA
| SYMS & SYMS (NO. 2) | [2020] FamCAFC 192 |
| FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – PROCEDURAL ORDERS – Appellant seeks multiple procedural orders in relation to appeal – Application for extension of time to file Summary of Argument – Application to issue and re‑issue subpoenas for production of documents – Authorised transcript – Further evidence – Application granted in part and otherwise dismissed. |
| Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(2) Family Law Act 1975 (Cth) s 93A(2) Government Information Public Access Act 2009 (NSW) |
| APPLICANT: | Ms Syms |
| RESPONDENT: | Mr Syms |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
| FILE NUMBER: | NCC | 1457 | of | 2018 |
| APPEAL NUMBER: | EAA | 120 | of | 2019 |
| DATE DELIVERED: | 7 August 2020 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Ryan J |
| HEARING DATE: | 22 July 2020 |
| LOWER COURT JURISDICTION: | Family Court of Australia |
| LOWER COURT JUDGMENT DATE: | 10 October 2020 |
| LOWER COURT MNC: | [2019] FamCA 724 |
REPRESENTATION
| THE APPLICANT: | Self-represented |
| THE RESPONDENT: | Self-represented |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Aid NSW |
Orders
That the time for filing Summaries of Argument be extended so that the mother files and serves her Summary of Argument by 19 August 2020, the father files and serves his Summary of Argument by 9 September 2020 and, the Independent Children’s Lawyer files and serves their Summary of Argument by 30 September 2020.
That the Independent Children’s Lawyer provide the mother and the father with copies of the “tender bundle” given to Dr M.
The mother and the father be restrained from showing, disclosing the information therein or giving copies of the documents provided pursuant to Order 2 above to any person other than a legal practitioner retained for the purpose of this appeal.
The mother have leave to issue subpoena for the production of documents as follows:
(a)Interviews of the children by NSW Police in January 2019;
(b)Copy of the mother’s statement given to Detective P on 11 February 2019;
(c)COPS entries E…26, E…31, E…01, E…05;
(d)Records relating to a home visit by police at W Street, EE Town on 24 April 2018, including copies of notes written by X on 23 April 2018; and
(e)Documents previously produced by Dr U.
The application to adduce further evidence in the appeal contained at paragraph 6.4 of the application be adjourned to the hearing of the appeal.
Other than as provided for in these orders, the Application in an Appeal filed on 30 June 2020 be dismissed.
The costs of the application to be costs in the appeal.
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 Syms & Syms 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).
| THE APPELLATE JURISDICTION OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 120 of 2019
File Number: NCC 1457 of 2018
| Ms Syms |
Applicant
And
| Mr Syms |
Respondent
And
Independent Children’s Lawyer
REASONS FOR JUDGMENT
By an Application in an Appeal filed on 30 June 2020, Ms Syms (“the mother”) applied for a raft of procedural and other orders in the context of her appeal against parenting orders made on 10 October 2019.
Background to the appeal and this application can be found in a recent judgment published by Ainslie-Wallace J given in another application filed by the mother in this appeal (Syms & Syms [2020] FamCAFC 115). At [10]–[12] of those reasons the nature of appeals to the Full Court of the Family Court of Australia are explained in some detail. At paragraph 27 of the mother’s affidavit filed in support of this application, she correctly sets out the legal framework for the appeal. However, at paragraph 28 of the same affidavit, the mother effectively disavows those principles and explains the rationale for this application in the following terms:
I have filed this Application in an Appeal to address issues relating to information which is required to ensure there is a complete and full record of the Court Files for NCC1457/2018. This is a matter of procedural fairness and open and transparent court processes.
(As per original)
These sentiments are repeated in the mother’s Summary of Argument served shortly prior to this hearing. It is thus appropriate to repeat Ainslie-Wallace J’s observation that “the Full Court does not have a roving remit to conduct, as it were, an enquiry into the proceedings or the history of the proceedings and the parties” [10]. Nor does procedural fairness require that the Full Court has available to it every document created by external agencies in relation to the parties, either of them or the children. The Full Court has regard to the trial record and such further evidence as is admitted in accordance with s 93A(2) of the Family Law Act 1975 (Cth) (“the Act”).
Contrary to the mother’s submission, the Government Information Public Access Act 2009 (NSW) has no relevance to her applications and it need not be discussed further.
By paragraph 6.1 the mother seeks an extension of time to file her Summary of Argument. The mother was directed to file her Summary of Argument by 10 July 2020, which she has not done. Mr Syms (“the father”) is concerned that the appeal does not drag on and would like to be free of the strains and stressors associated with the litigation. Nevertheless, both he and the Independent Children’s Lawyer (“ICL”) agreed that an extension of time to 19 August 2020 could be given. An order to that effect will be made along with the necessary extensions of time for the father and ICL to file their Summaries of Argument.
At paragraph 6.2 the mother seeks:
A Full Bench review of the application to issue and reissue subpoenas in order to bring the court file up to date and to ensure there is a complete and full record, and to enable the processes carried out under the Magellan process to be fully examined.
(As per original)
Given the nature of the appeal, which means it is not a roving review or de novo appeal, this aspect of the application does not demonstrate a legitimate forensic purpose for the production of these documents and prima facie is an abuse of process.
By reference to the Summary of Argument, the mother explains that she seeks to issue and reissue subpoenas for the production of documents to:
1.ACT Child Protection;
2.Australian Federal Police;
3.Department of Communities and Justice;
4.Dr M;
5.W Centre, Mr V;
6.Family Law Court;
7.JJ Centre, Dr U; and
8.NSW Police.
The mother says that documents produced, for example by the Department of Communities and Justice and the Australian Federal Police, were heavily redacted and the names of mandatory reporters were not provided; she now seeks access to the un‑redacted documents. The mother, who was legally represented, in the court below made no complaint about the production of documents by these agencies or as to whether the documents produced fully complied with the subpoena. It is not now an issue germane to the appeal.
Furthermore, the identity of notifiers dealing with the Department of Communities and Justice is protected. The court cannot disclose their identity (assuming consent is not given) unless the court is satisfied that the evidence is of critical importance in the proceedings and that failure to admit it would prejudice the proper administration of justice (Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29(2) (“Care and Protection Act”)). All states and territories have restrictions to similar effect. Neither limb of s 29(2) of the Care and Protection Act has been established.
In a similar vein, documents produced by NSW Police did not include “protected” documents being those documents identified at paragraph 52 of the mother’s affidavit filed on 30 June 2020. Again, no issue was taken in relation to these matters in the Court below.
However, the mother should have leave to issue subpoenas for the production of a number of documents. Namely, documents produced previously but which, according to the mother, cannot now be located in the registry. Documents are sometimes extracted from subpoena bundles when they are made exhibits, but the mother says that is not the case with these documents and the documents are simply missing. The documents which fall into this category are:
·Interviews of the children by NSW Police in January 2019 – at some stage the discs have become corrupted and replacements are required;
·Copy of the mother’s statement given to Detective P on 11 February 2019;
·COPS entries E…26, E…31, E…01, E…05;
·Records relating to a home visit by police at W Street, Suburb EE on 24 April 2018, including copies of notes written by the parties’ eldest child, X, on 23 April 2018; and
·Documents by Dr U.
The subpoena to Dr M for production of her original letter of engagement is plainly an abuse of process. The mother has it and it is included as part of her contentious appeal book. As to the tender bundle provided to Dr M, the ICL was constrained by an order, which meant she could not provide copies of those documents to the parties. It was agreed that, provided the parties could not provide the documents to anyone other than lawyers retained on their behalf in the appeal, they could be provided by the ICL. That order will be made.
By paragraph 6.3 the mother seeks to “update the [c]ourt [f]ile” by having the documents returned pursuant to the subpoena issued in accordance with her application for order 6.2 added to the file. It is a concept with which I am unfamiliar and should be dismissed.
By paragraph 6.4 the mother seeks to adduce further evidence in the appeal of a large number of documents identified at 6.4(a)–(h) (inclusive). The admission of further evidence in the appeal is a matter for the Full Court at the hearing of the appeal and the application will be adjourned accordingly.
The mother seeks an order against Auscript requiring that they provide a transcript of seven audio‑visual interviews with the children and police, played during the trial. Furthermore, that Auscript provide a record of the primary judge’s reasons for judgment concerning the admission of evidence from Dr O. It would seem that the primary judge was not provided with a transcript of the children’s interviews and the purpose of the order is to create one. Given that none of the grounds of appeal explicitly challenge her Honour’s findings concerning these interviews, it is not apparent why this issue has arisen. In any event, the Court will not stand in the way of the mother entering into an arrangement with Auscript (which she advises they are willing to fulfil) for them to provide a transcript of those interviews at the mother’s expense.
In relation to the transcript of the primary judge’s reasons for judgment, if this is an issue, the settled reasons should be requested from the primary judge. Only then would an application for the transcript be considered. Whether or not it would be given is a separate question but it would be inconsistent with authority for access to be given for “transparency” or “a complete record” as the mother contends.
The mother’s application at paragraph 6.6 for an order that Auscript provide transcripts of various interviews by police agencies with either party, the children or maternal grandparents which were not adduced at evidence at trial will be refused. This is not part of the court’s function.
By paragraph 6.7 the mother seeks that “access to all of the material on the court files is made available to all parties”. The mother is particularly concerned to have access to what she describes as “the left side of the file” which contains court records but not documents filed in the proceedings. The mother claims access is “in the interests of procedural fairness”. There is nothing procedurally unfair in refusing the mother access to documents which do not form part of the trial documents and which, by and large, relate to the administration of the matter. The mother’s request that she have access to CCTV footage (even if it exists) of her attendance in the subpoena room at the Sydney Registry on 12 March 2020 is rejected for the same reason.
For similar reasons the mother’s application for discovery against the court in relation to the operation of the Magellan program should be dismissed.
Otherwise, upon the court informing the mother that she was entitled to file a Summary of Argument of 15 pages, the mother withdrew her application for permission to file one that is 18 pages.
Finally, the mother’s application to revoke Orders 21 and 22 made by the primary judge on 10 October 2019, impermissibly blurs the exercise of original and appellate jurisdiction. By her Notice of Appeal, the mother challenges those orders and whether the orders are varied or set aside etc will be determined in the appeal. That application will also be dismissed.
It is agreed that the costs of this application will be costs in the appeal.
I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ryan delivered on 7 August 2020.
Associate:
Date: 7 August 2020
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