T and R

[2007] FamCA 619

FAMILY COURT OF AUSTRALIA

T & R [2007] FamCA 619

FAMILY LAW – APPEAL - Application for leave to adduce further evidence – issue of subpoena

Family Law Act 1975

APPELLANT: Mr T

RESPONDENT: Ms R

FILE NUMBER: CAM 812 of 2005

APPEAL NUMBER: EA 39 of 2006

DATE DELIVERED: 25 June 2007

PLACE DELIVERED: Canberra

JUDGMENT OF: Faulks DCJ

HEARING DATE: 25 June 2007

LOWER COURT JURISDICTION: Federal Magistrates Court

LOWER COURT JUDGMENT DATE: 16 March 2006

LOWER COURT MNC: [2006] FMCAfam 140

REPRESENTATION

Each party appeared on their own behalf

Orders

1. The appellant father’s application for leave to issue subpoenas to Mrs Denver, Kyranda Public School, Mr O’Brien, Kyranda Public School and Ms Perkin, Relationships Australia, is dismissed

IT IS NOTED IN CONNECTION WITH THESE ORDERS that the judgment of the Honourable Deputy Chief Justice Faulks delivered this day will for all publication and reporting purposes be referred to as T v R.

FAMILY COURT OF AUSTRALIA AT CANBERRA

Appeal Number:       EA 39/2006
File Number:            CAM812/2005

Mr T

Appellant

And

Ms R

Respondent

REASONS FOR JUDGMENT

1. The appellant father, Mr T, sought leave to issue a number of subpoenas on the basis that they would form part of evidence that he would seek leave to adduce as further evidence to be considered during the hearing of his appeals. The subpoenas he sought appear to relate primarily to the appeal from her Honour Federal Magistrate Henderson’s orders of 16 March 2006.

2. The subpoenas were to be directed to Mrs Denver, Primary School Teacher, Kyranda Public School, to give evidence and “supply information (verbal) to the mother and denied to the father restricted from communication with the father by Principle [sic] – not to converse with Principle [sic] prior to giving evidence”, to Mr O’Brien, Kyranda Public School, to give evidence “and school dental note after gaining Mrs Rs [sic] permission 8/9/06. Supply of information (verbal) to the mother – denial of same to father – breach of orders of shared parenting. Not to converse with or influence Mrs Denver”, and to Mrs [Perkin], of Relationships Australia to give evidence “[t]o explain the “verbal acknowlagements [sic] made to you” in your email of 27/4/06 regarding family law matters and my letter of complaint dated 24/4/06”.

3. The appellant’s application for leave to issue these subpoenas is denied. The subpoena directed to Mrs Denver from the oral submissions made to me by the father on the telephone on 25 June 2007 appears to be directed to communications that happened after the judgment in relation to an interpretation, or possibly the interpretation of her Honour Federal Magistrate Henderson’s orders. It cannot be in those circumstances evidence that would be relevant for the appeal.

4. Of a similar nature is the subpoena proposed to be directed to Mr O’Brien. Although this subpoena was not specifically the subject of an address before me from Mr T on 25 June 2007, it falls apparently within the same category as the previous subpoena proposed to be directed to Mrs Denver. These seem to relate to matters after the judgment of her Honour and as a consequence do not constitute a proper basis for further evidence before the Court, assuming I gave leave to issue the subpoena. Even if I were to give leave to allow further oral evidence during the course of the appeal process which would in effect be to widen the ambit of the original dispute would be both inappropriate and a denial of natural justice to Ms R.

5. The subpoena proposed to be directed to Ms Perkin was not the subject of any oral submissions by Mr T to me on 25 June 2007. The judgment of her Honour was delivered on 16 March 2006 and the matters suggested as being the subject of the application for Ms Perkin to give evidence related to some exchange of emails or correspondence or both after the delivery of the judgment of her Honour. No information is contained in the affidavit accompanying the application to give further evidence which would provide any basis for my establishing that there could be any reasonable or possibly even any remote relevance of such evidence to the hearing of the appeal. Accordingly, leave to issue that subpoena is also refused.

6. My refusal to give leave to issue the subpoenas referred to above does not mean that I have determined the appellant’s application to adduce further evidence during the course of the appeal. That application will be dealt with on the morning of the appeal but of course it must be directed to evidence that is available on that day for the purposes of the hearing of the appeal. Whether there is any such evidence available if the above-mentioned subpoenas are not issued is a matter that Mr T can no doubt address when he proceeds with that application in due course.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Full Court.

Associate: 

Date:  25 June 2007