SYMS & SYMS

[2020] FamCAFC 115

FAMILY COURT OF AUSTRALIA

SYMS & SYMS [2020] FamCAFC 115

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL FOR REVIEW OF APPEAL REGISTRAR'S DECISION – Where procedural orders were made regarding the composition of the Appeal Book – Where the mother requires further documents and a transcript to be included in the Appeal Book – Where the mother seeks leave to issue a subpoena to the Independent Children’s Lawyer – Fishing expedition and relevance of documents – Order for the mother to prepare a Contentious Appeal Book – No leave to issue the subpoena – Application allowed in part.

Family Law Act 1975 (Cth) s 93A(2)

Family Law Rules 2004 (Cth) r 22.40

Bele & Vaughan (No.2) [2012] FamCAFC 125
Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Wellington & Child Support Registrar [2012] FamCAFC 34

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: 15 May 2020

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney (via telephone)

JUDGMENT OF: Ainslie-Wallace J

HEARING DATE: 25 February 2020 and 12 May 2020

LOWER COURT JURISDICTION: Family Court of Australia

LOWER COURT JUDGMENT DATE: 10 October 2019

LOWER COURT MNC: [2019] FamCA 724

REPRESENTATION

THE APPLICANT: Litigant in person

THE RESPONDENT: Excused from attending

THE INDEPENDENT CHILDREN’S LAWYER: Excused from attending

Orders

1. A Contentious Appeal book be prepared which contains the documents listed in in the annexure marked “B” to the mother’s affidavit filed on 12 May 2020 and which relate to the interim hearing before the primary judge of 21 September 2018.

2. The Application for leave to issue a subpoena to the Independent Children’s Lawyer is dismissed.

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: EAA 120 of 2019
File Number: NCC 1457 of 2018

Ms Syms

Applicant

And

Mr Syms

Respondent

And

Independent Children’s Lawyer

REASONS FOR JUDGMENT

1. By an Application in an Appeal filed 5 February 2020 Ms Syms (“the mother”) seeks to review a decision of an Appeal Registrar made on 22 January 2020 rejecting her request to include further documents and a transcript in the Appeal Book.

2. The mother appeals final parenting orders made by a Judge of the Family Court on 10 October 2019 between herself and Mr Syms (“the father”).  The orders concern the parties’ three children, X, born in 2008, Y born in 2010 and Z born in 2012.  Up until the final orders of 10 October 2019, the mother had been the primary carer of the children.  Her Honour’s orders resulted in the children living with the father and, after an interregnum of four months in which neither the mother nor her parents were able to spend time with the children, orders provided that she have supervised time with the children.

3. The principal issue in the final hearing were allegations of sexual abuse of the children by the father.  The allegations were investigated by the Department of Family and Community Services (“FACS”) and by the Joint Investigation Response Team.  The children were engaged in sexual assault counselling.  Given the allegation, the primary judge placed the proceedings in the “Magellan List” and a Magellan Report was requested which provided the Court with information from the joint investigation of the police and FACS.

4. On 21 September 2018 the primary judge heard and determined an interim application brought by the father seeking orders that he spend supervised time with the children.  The application was brought in the shadow of the unexplored allegations of abuse, and whilst the father denied the allegations, he acknowledged the caution with which such allegations are approached up until they may be fully considered.

5. The primary judge made the orders sought and published reasons for those orders.  At the time of that hearing her Honour had before her various reports on the issue of the sexual abuse allegations to which she referred in those reasons.

6. On 22 January 2020 an Appeal Registrar made the usual procedural orders for preparation of the Appeal Book. The mother sought to include in the Appeal Book the orders, reasons, affidavits, transcript and exhibits that were before the primary judge in the interim hearing. That application was refused by the Appeal Registrar. It is as a result of these directions and the Appeal Registrar’s refusal to include these documents that the mother’s application for review of the decision arises. Rule 22.40 of the Family Law Rules 2004 (Cth) provides for such a review.

7. Reviews of orders made by Appeal Registrars by single judges of this Court are conducted on the basis of a hearing de novo whereby “…it is unnecessary for the applicant to demonstrate any error on the part of the Registrar” (Bele & Vaughan (No.2) [2012] FamCAFC 125 at [44]) and where “[n]o leave or consideration of the merits of the application prior to its hearing is required” (Wellington & Child Support Registrar [2012] FamCAFC 34 at [25]).

The Application

1. The documents sought to be included were particularised in the mother’s Application for review of that decision. They are:

   ·Interim Hearing Transcript, dated 21 September 2018.[1]

   [1] It appears that the date in relation to the Interim Hearing date is incorrect on the mother’s Application in an Appeal. According to the Court file, the correct date should be 21 September 2018.

   ·Order of the [the Primary Judge], dated 21 September 2018.

   ·Judgement of the [the Primary Judge], dated 21 September 2018.

   ·ICL Orders, dated 13 August 2018.

   ·ICL Orders, dated 21 September 2018.

   ·Medical Reports completed by Dr I, C Town Sexual Assault Service, for X, Y and Z, tabled in evidence at the Interim Hearing on
   21 September 2019.

   …

   ·Affidavit of Mr Syms, May 2018

   ·Affidavit of Ms Syms, July 2018

   ·Affidavit of Ms DD, September 2018

   (As per the original)

2. In addition to those documents, the mother seeks to include in the Appeal Book the exhibits from the interim hearing and documents produced under subpoena in the proceedings but which were not tendered to the primary judge in either hearing.

Nature of appeals to the Full Court

1. An appeal to the Full Court is for the correction of error. 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. Section 93A(2) of the Family Law Act 1975 (Cth) states "... in an appeal the Family Court shall have regard to the evidence given in the proceedings out of which the appeal arose …”.

2. The Full Court has the power, in its discretion, to admit further evidence on the appeal.  The exercise of the discretion is to ensure that the proceedings do not miscarry, to avoid errors which otherwise could not be remedied by ordinary appellate procedures.  The Full Court, may, for example, admit evidence which would demonstrate that the decision under appeal is erroneous or to buttress the findings of the primary judge.  However, where the further evidence is controversial, or which would necessitate the extensive taking of evidence, it will not be admitted because to do so would be to obliterate the distinction between the trial and appellate process (see CDJ v VAJ (1998) 197 CLR 172 at 202).

3. This, then is the legal construct against which the mother’s application must be considered.

Documents and evidence relevant to the interim hearing of 21 September 2018

1. A great many of the documents which the mother wishes to be included in the Appeal Books are not evidence from the trial from which the appealed orders spring but rather were part of the material considered by the primary judge in making the interim orders in September 2018.  The mother argued that they are important to the successful prosecution of her appeal.  With some misgivings I propose to order that those documents be included in a Contentious Appeal Book that may be considered by the Full Court hearing the appeal should the mother make out an argument for their consideration.

Documents produced under subpoena but were not in evidence before the primary judge

1. The mother argues that while some documents produced under subpoena were referred to during the final hearing before the primary judge, they were not tendered and she sought to include documents produced but not tendered.

2. Those documents will not be included in the Appeal Books, and any use of them in the appeal will have to be by way of leave of the Full Court based on an application to adduce them as further evidence.

Application to issue a subpoena

1. The mother sought leave to issue a subpoena to the Independent Children's Lawyer seeking a raft of notes and documents relating to the Independent Children's Lawyer’s role in the proceedings.  For example the subpoena seeks “[a]ll communications between the Independent Children's Lawyer (ICL)… and the Department of Communities and Justice, New South Wales” and “[a]ll communications between the ICL and the Barrister representing the children… including all notes, emails, documented phone calls, diary entries, briefs and reports and any material regarding [the barrister’s] appointment to the case” (as per the original).

2. The mother could not say what was in the documents sought to be produced nor what she expected them to tell her, but said that since the proceedings had been part of the Magellan Protocol, she wished to investigate whether the Court, Independent Children's Lawyer and the Department of Communities and Justice had followed the protocols relevant to that list.

3. I will not give leave for this subpoena to be issued.  Firstly, it amounts to no more than an exercise in fishing around for information and it is clear that the mother cannot identify what information might be provided by the documents.  It is well established that a subpoena must be issued for a genuine forensic purpose and must identify the documents that “are relevant to an issue for decision by the court in the litigation” (see Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162 at 181). Secondly at least the major part of the subpoena seeks documents which one imagines involve legal professional privilege, and thirdly and most importantly, the information produced by the documents has no relevance to the appeal or any identified ground. It is material which, per force will be controversial and would otherwise require the taking of extensive evidence such that it would not be admitted on the appeal.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on 15 May 2020.

Associate: 

Date:  15 May 2020