TIMMS & CHAPMAN
[2018] FamCA 327
•15 May 2018
FAMILY COURT OF AUSTRALIA
| TIMMS & CHAPMAN | [2018] FamCA 327 |
| FAMILY LAW – CHILDREN – PARENTING - Where final orders were made in December 2017 after a contested 5 day hearing-where the child is aged 14 years and resists spending time-where the child takes matters into his own hands and applies for and obtains an intervention order-where the magistrate grants that order and the order for the father’s time is nullified-where the trial judge ordered therapy but the appointed therapist says it will not work- where the father applies for an alternative therapist-where the court finds that inappropriate-where the father seeks access to the school portal having been denied by the school-where the father has parental responsibility but the wife argues she has sole responsibility for education-consideration of the meaning of such orders-where the court considers it is a matter for the school-application dismissed. FAMILY LAW – SUBPOENA-where the was no extant substantive parenting application but the father filed an application for interim orders-where the father sought a subpoena be issued against the school-where the mother objected but the school did not-where the court should not have issued the subpoena-where there was no apparent relevance to the issues in litigation-subpoena set aside. |
| Family Law Act 1975 (Cth) |
| Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 H & H & L (unreported 10 May 2018 Full Court) Hatton (2000) FLC 93-038 Langford & Coleman (1993) FLC 92-346 Malloy & Stopford Malloy [2017] FamCAFC 205 T and S (2001) FLC 93-086 |
| APPLICANT: | Mr Timms |
| RESPONDENT: | Ms Chapman |
| INDEPENDENT CHILDREN’S LAWYER: |
| FILE NUMBER: | MLC | 582 | of | 2012 |
| DATE DELIVERED: | 15 May 2018 |
| PLACE DELIVERED: | Melbourne |
| PLACE HEARD: | Melbourne |
JUDGMENT OF: | Cronin J |
| HEARING DATE: | 4, 11 May 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Combes |
| SOLICITOR FOR THE APPLICANT: | DLT Legal |
| COUNSEL FOR THE RESPONDENT: | Mr Thompson |
| SOLICITOR FOR THE RESPONDENT: | Ocean Legal Solicitors |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Leeton |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Victoria Legal Aid |
Orders
The father’s application (as amended) filed 9 May 2018 is dismissed.
The mother’s response filed 30 April 2018 to the father’s application in a case is dismissed
The subpoena issued to S School is set aside.
The objection to the subpoena is therefore dismissed.
The documents produced under the subpoena are to be forthwith returned to the school principal.
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 Timms & Chapman 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).
| FAMILY COURT OF AUSTRALIA AT MELBOURNE |
FILE NUMBER: MLC 582 of 2012
| Mr Timms |
Applicant
And
| Ms Chapman |
Respondent
Independent Children’s Lawyer
REASONS FOR JUDGMENT
Parenting proceedings about J (the child) have been ongoing since 2012. the child is now almost 15 years of age and the only child of Ms Chapman and Mr Timms. These reasons concern another dispute between the parents to whom I shall refer as “the father” and “the mother”.
There are three issues for determination:
(a)Should the Court make an order that the parties (and by implication the child) attend upon psychologist, Ms M, for a form of family therapy to enable, or perhaps resume, a relationship between the father and the child to occur?
(b)Should the Court make orders directed to the mother to authorize the child’s school to provide the father with access to “the portal” and another electronic information site at the school from which he is currently excluded?
(c)Should documents produced by the school under a subpoena, issued by the Court at the request of the father, be released to the parties in the context of the immediate proceedings?
The following reasons explain the orders that I now make. Answering the three questions, I say:
(a)No;
(b)No; and
(c)No
The starting point for this dispute is to understand that the parents of the child have had at least two final hearings, the last of which was only at the end of 2017 and already in 2018, there have been a number of interlocutory hearings.
Relevantly, on 4 December 2017, after a contested hearing over 5 days in August, McClelland J made the following orders (the underlining being my emphasis):
[1]The mother shall have sole parental responsibility for … the child…in relation to the following long-term issues:-
a. The child's education (both current and future);
…
[8]In all other respects, the parties shall have shared parental responsibility for the child.
…
[14]That the mother and father forthwith do all things necessary to re-engage in family therapy with a therapist agreed between the parties and ensure that the child and the parties attend as directed and at the discretion of the therapist save that the period of the therapy shall be limited to a period of six months from the date of this order unless it is extended with the consent of the parties upon such recommendation by the therapist with the cost of the therapy to be shared equally between the parties.
[15]For the purpose of order 14 the mother shall, within seven days of the date of these orders, provide the father with a list containing the names of three appropriately qualified therapists and the father shall choose from that list, one therapist to provide the therapy referred to in order 14.
…
[19]That the mother shall authorise the school at which the child attends to:
(a)provide the father at his expense copies of all school reports, NAPLAN results, school notices and order forms for school photographs;
(b)permit the father to attend for parent/teacher interviews (separately to the mother and in the absence of the child);
(c)permit the father to otherwise meet with the child’s teachers or school authorities to discuss the child’s education and welfare subject to such meeting taking place outside school hours; and
(d)service on the school with a copy of this order by the mother shall be taken to stand as authority for the purpose of this order.
…
[25]All applications are hereby dismissed and removed from active pending cases list.
The uncontested facts since the judgment and the orders are:
(a)All proceedings were dismissed indicating that, from the point of view of the Court, all issues joined between the parties had been finally determined;
(b)A “contact” period between the father and the child was attempted but it ended with the child calling the police and refusing to go with his father;
(c)On 23 December 2017, the child emailed his father in blunt terms indicating he would not have any relationship with him;
(d)On 25 December 2017, the mother sent a “text” message to the father maintaining she had encouraged the child to spend time with his father;
(e)On 18 February 2018, an ex parte intervention order was made by a magistrate on the application of the child;
(f)The therapist referred to in the orders and upon whom agreement had been reached wrote in February 2018 that there was no purpose in the family therapy; and
(g)On 18 March, the Independent Children’s Lawyer wrote saying she did not support the child having time with the father.
The Court was not provided with a copy of the transcript of the intervention order proceedings brought by the child personally before the learned magistrate but it is common ground that a mention of the disputed case will occur in August. When the case is to be finally heard (and perhaps even why) remains to be seen. In the meantime, the intervention order prohibits the father from contacting the child at all or being at his home and other places. There is no exemption provision (as there often is) in the restrictions deferring to orders under the Family Law Act1975 (Cth) (“the Act”).
Very recent to the present hearing is the fact that the father was interviewed by police about a breach of that intervention order. It is apparently alleged (although no documents were provided) that the father went to the child’s home and delivered something. That too is as yet undetermined.
First, some observations should be made about the uncontested facts and the 2017 orders.
The orders
Whilst the order made by the trial judge gave the mother sole parental responsibility in relation to education, it came with conditions requiring her to consult with him and for both parents to make a genuine effort to resolve the issue at hand. That was a forlorn hope but it indicates that his Honour did not give the mother carte blanche. More significantly in the context of the present dispute, his Honour made clear that the education responsibility related to “long-term issues” which must be contrasted with day to day parental responsibilities such as attending to haircuts, dietary needs and the like. That becomes relevant when I consider the mother’s present position about having sole parental responsibility to the exclusion (as she would see it) of anything associated with the education of the child. The extent to which the order was “conditional” remains unclear and nothing indicates that a failure or refusal to undertake what his Honour wanted done meant that the mother lost that responsibility.
Paragraph [8] of the orders is very clear. Leaving aside education and health to which I return later, both parents were to have parental responsibility. Although the order said that, it probably did not need to do so. Section 61C of the Act provides:
(1)Each of the parents of a child who is not 18 has parental responsibility for the child.
…
(3)Subsection (1) has effect subject to any order of a court for the time being in force
Thus, parental responsibility was not removed from the father other than on the conditional basis relating to education and health. It is timely therefore to remember that s 61B of the Act provides:
In this Part, parental responsibility , in relation to a child, means all the duties, powers, responsibilities and authority which, by law, parents have in relation to children. (my emphasis)
The father must therefore remain responsible for (if not entitled to) all matters associated with parenting the child other than making long term decisions about health and education (subject to the conditions mentioned).
How that responsibility is exercised, and seen by the law to be exercised, is the immediate issue.
Paragraphs [14] and [15] of the orders focus on what his Honour seemed to be most concerned about. It was uncontroversial that the child was resisting having a relationship with his father and his Honour was told that the mother was responsible for that dilemma despite her protestations to the contrary. That can be seen in the following paragraphs of his Honour’s judgment:
[213]In circumstances where, other than in therapy, the child has not seen his father for approximately two years, it is likely that the child’s knowledge of the current court process is likely to have come from his mother. In that context, Ms M records, in her most recent report, that the child stated to her that his mother does not hide her feelings that they are “close and truthful with one another”.
[214]Further, Dr FF’s view that the mother has been subtly sabotaging the therapy aimed at restoring the child’s relationship with his father is consistent with the mother’s evidence demonstrating a clear disdain and distrust of the father. It is also consistent with the child’s comment to Ms M that his mother does not want him to see his father.
[215]I therefore accept the accuracy of Dr FF’s report that it is likely that the mother has in fact subtly sabotaged therapy that Dr FF has been providing with a view to restoring the child’s relationship with his father.
[216]As noted, the father challenges the mother’s commitment to assisting the child to restore his relationship with his father through the process of family therapy. Despite the mother’s statements that she has attempted to encourage the child to see his father, there is substance in the father’s contention. I note for instance, in the course of her oral evidence the mother stated:
His whole first year of high school has been interrupted by having to go to appointments where he was forced into a situation to play cards and so forth with his dad. He has had a gut full of it. He’s had a gut full.
(underlining is my emphasis)
Thus, while it is said that there is the uncontested fact, as the mother would have it, that the first attempt at contact was with her encouragement, his Honour’s finding at [215] only weeks before would leave me with real doubt.
It is also important to know that there was no appeal from the orders of McClelland J and as such, I consider I do not need to go behind the judgment and I should read the orders as they are (see Langford & Coleman (1993) FLC 92-346).
To add weight to the argument that the parental responsibility role of the husband in relation to the child was not extinguished entirely as to education, it can be seen that his Honour made an order in [19] which looks, on its face, as though it was intended to be a provision that the husband could obtain from the child’s school information that parents would normally be entitled to have, consistent with parental responsibility.
Just to be clear, consistent with having parental responsibility, one would expect that a school would respect parents’ rights and responsibilities which had not been removed by law. From the Court’s perspective, although it is not entirely clear to me why courts and indeed parties do it other than presumably for expediency, the fact as to what various judges and parties intend under the guise of parental responsibility is spelled out in an approach that is sometimes called a “road map” or guide for those who do not understand the law.
In case it is thought that the wording of orders should be strictly construed, it does not necessarily follow. Returning to his Honour’s orders for a moment, this order appears:
[26]Pursuant to s 62B and s 65DA(2) of the Family Law Act 1975 (Cth), the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders, and details of who can assist parties to adjust to and comply with an order, are set out in the document entitled "Parenting orders - obligations, consequences and who can help", a copy of which is annexed to these Orders.
A view that the document referred to is not particularly relevant or useful or worse, not read, would be quite wrong particularly where lawyers have a mandated responsibility to explain orders and so does the court where there is no such representation. The document referred to in [26] contains the following:
Your legal obligations
·You must do everything a parenting order says. In doing so, you cannot be merely passive but must take positive action and this positive action includes taking all reasonable steps to ensure that the order is put into effect. You must also positively encourage your children to comply with orders….
Those concepts are incorporated into the order. Thus, here, there was an obligation on the mother not just to ensure the physical contact occurred but also to take positive action to ensure that the family therapy occurred as well. That must mean more than just taking the child somewhere; it includes encouragement. The same applies in ensuring that parental responsibility at the school is recognised if the school is uncertain.
McClelland J was, as I am, troubled about the fact that these parents have been litigating for a significant part of the child’s life and whilst the present application is limited to 3 specific issues, the mother’s response in simply seeking a dismissal of the father’s application seems to me unhelpful. The father does not seek enforcement of his time with the child and the mother does not seek that the orders be discharged. Regardless of what I do in these proceedings, the stand-off continues but that can be explained by how the trial saw the parties.
In his reasons for judgment, McClelland J said:
[260]The parents in this case are both driven people. To date they have failed to appreciate the impact that their obsession with their own dispute has had on their son. In light of that history, it is quite possible that there will be ongoing litigation between these parties. If that were to occur it is likely that the child will suffer further psychological injury. Indeed it is not simply possible - it is entirely foreseeable.
[261]While it is not directly relevant to my decision, it is my recommendation that if the parents embark on further litigation, the ICL should advise the child of his right to have his own separate representation and to facilitate the child obtaining advice as to any additional rights that he may have.
It is not my task to delve into the minds of the parents as his Honour had done. In the present proceedings, I am dealing with submissions and the affidavit material upon which the parties relied but the words of his Honour resonate with me.
In the immediate application, the child’s interests were represented by an Independent Children’s Lawyer. It was acknowledged that there had only been a written communication some time ago from the child as a result of which the lawyer had decided not to do any further interviews. Thus, whilst the order for an independent children’s lawyer continued, I do not know whether or not the child has had the advice to which his Honour referred. It may be that he does not need it as he seems quite capable of spending his holidays researching the law associated with intervention orders, attending at a magistrates court and articulating his position sufficiently clearly to have the magistrate grant an interim intervention order the effect of which was to suspend this Court’s orders for the maximum allowable period of 21 days.
Evidence
The father’s evidence
Before returning to the three issues, the following evidence was read as being relevant.
The father said that he interpreted the orders to mean that he could get information and so he contacted the school at the start of the 2018 academic year. On 2 March, he received an email from the school saying that the principal had received advice not to provide him with the information he sought. In 2017, something similar occurred and his solicitor wrote to the school and the information then came. In 2017, the father said his interest was in the child’s absence from school on health grounds. Paragraph [15] of the December 2017 orders reads:
Each party shall keep the other informed at all times of all significant medical issues affecting the child including any significant injury or medical condition suffered by the child during such time and such periods when the child is in the care of each of them.
The father complained he had not been told by the mother and he would not therefore have known of what was happening about the child’s health without the school information.
The school operates a portal by which it engages with parents but in March 2018, the father was denied access to that. He was advised it was closed to him on the basis of the mother’s instructions that she had responsibility for education matters. As I have already described, if that view was taken, I consider it would be wrong without a specific court order removing the father’s responsibilities as a parent.
There is apparently a distinction between two types of portal at the school. One seems to have general information and the other is more sensitive to the specific details of the child. The mother’s position seems to be that she does not have difficulty with the father having access to the former but she resists his access to the latter.
In respect of therapy, the father said that the appointed therapist, Ms Z, did not “believe herself capable of providing the ordered therapy”. Hence, he proposed psychologist Ms M who had been involved with this family as far back as 2012.
The mother’s evidence
The mother’s affidavit filed 9 May 2018 was long and contained considerable argument rather than facts along with an attempt to go behind the orders of December 2017. It is unnecessary for me to deal with much of what she said because it was dealt with adequately by her counsel in discussion and submission.
The affidavit dealt with the incident when the child called in the police and then went and obtained an intervention order. It dealt with the very recent event that the father has now been charged with a breach of the intervention order and it asserts that the police are investigating further breaches. The mother is very much involved in what is going on in the child’s life insofar as it relates to the parenting dispute.
As for the child needing some form of counselling or therapy, the mother said that it was the father’s actions and behaviour towards the child that “created a dysfunctional relationship” with his son. Her opinion was that the child fears his father.
Much of what the mother said pointed to the fact that apart from the child being the subject of “psychological manipulation” and abuse, her evidence focused on family violence. It is interesting to see what McClelland J said about that (bearing in mind the present affidavit was drawn by the mother’s lawyer who represented her at trial and on the mother’s instructions):
[248]The mother’s allegations of the father having engaged in conduct that constitutes family violence are very general. In the absence of evidence of specific events, I do not make a finding that the father has engaged in acts of family violence against the mother and this issue is not relevant to my consideration of appropriate parenting orders.
It is difficult for me to treat seriously the assertions of the mother in the context of the orders against which no appeal was raised.
In relation to the ordered family therapy, the mother, like the father, put her own views about what the expert was saying. I prefer the expert’s own words. In essence, the mother’s position was that the child had had enough.
The therapist
Both parties relied on a letter from Ms Z dated 27 February 2018. This letter described Ms Z as having qualifications in education, social work and family therapy. It is unclear to me why the father is of the view she is not appropriately qualified bearing in mind the trial judge’s orders provided for the father to pick one of the names proffered by the mother. If indeed, the father thought the names inadequate, that was the time to return to court under some machinery provision. As it was, that did not happen.
Ms Z wrote to both of the lawyers for the parties. She set out the sessions which she had conducted but none of which included father and child together.
Ms Z described the child as a well-functioning, articulate, fifteen year old boy who was quite coherent and reflective when discussing the history of his relationship with his father. She described the father as distressed and grieving over the loss of contact with his son.
The therapist then said:
[The child] indicated quite clearly that…he does not feel safe in the presence of his father to openly discuss his concerns.
Ms Z was aware that the child had gone to obtain the intervention order. She then said:
It is therefore not tenable to continue pursuing family therapy as a course of action to improve the relationship between [the child] and his father.
To the extent that any finding can be made, I am of the view that both parents have missed the point. Ms Z seems appropriately qualified but any therapeutic relationship is not tenable when there is an application for an intervention order pending based upon the belief of the child that his father is a risk to him to the point that he cannot discuss his concerns with him. Ms Z did not side with the child but rather pointed out the obvious that with the metaphorical sword of Damacles hanging over the heads of both the child and the father, endeavouring to create an environment inducive to creating a “healthy relationship” optimal for the “development of a healthy sense of self in a child”, was not possible.
The father’s position that to change experts or therapists at this stage could hardly cure that dilemma and in any event, there is no evidence before me to suggest that Ms Z was wrong.
But so too, to simply leave the extant orders in place is hardly conducive to a healthy relationship but neither party sought to do anything about that.
Argument
Counsel for the father submitted that McClelland J had made clear that the only way forward over the impasse was family therapy and the father was pressing for that to occur. He drew my attention to what his Honour said:
[294]As I have indicated, while I am satisfied that it would ultimately be in the child’s long-term interests to spend a longer period of time with his father including block time in school holidays, it is my opinion that progression to that point will only happen if the child is willing for that to occur.
[295]Accordingly, I propose making orders for there to be a period of therapy. However, I agree with the advice of Dr FF that the commencement of time should not be deferred until there has been a period of therapy. In that context, in response to a question from the ICL Dr FF stated:
I think [Ms Chapman] used the therapy to delay time and to contain it and to undermine it all the way, so I think there’s a real risk of that. So I think time has to start and therapy has to start and that’s what has to happen.
[296]Therapy is nonetheless important to accompany the introduction of the child spending time with his father. However, I do not propose to require that therapy to be on an indefinite basis because that, in itself, will adversely impact upon the child in the context where, at age 14, he has spent approximately one half of his life being caught in the litigation between his parents. This has, in turn, resulted in him being required to attend various periods of counselling.
[297]In those circumstances, the mother proposes that there should be a three month limit on the period of counselling. In the circumstances of this matter, however, I am of the view that counselling should be in place for a period not exceeding six months as proposed by the ICL.
The time frame for this process has almost expired but the more important issue is what benefit the child would get in the court trying again. I turn in a moment to the submissions of counsel for the mother but counsel for the father submitted that the orders sought were “machinery” in nature so the substantive orders could be altered such as to make them workable. Having regard to the four paragraphs of the judgment recited above, I consider that approach futile. Rightly or wrongly, influenced or otherwise, the child has made his position very clear to the point that he has called in the resources of State Law to assist him. No submission was put to me to the effect that I should apply Division 11 of the Act.
Counsel for the mother put three bases for the Court to dismiss the father’s application:
(a)The dismissal of the proceedings in December 2017 had ended all litigation and the present application in a case was an abuse of process because there was no substantive application (such as a variation of the December orders or a contravention) upon which to “hang” an interlocutory or interim application;
(b)There was no jurisdictional basis here to make the orders; and
(c)The Court should not make orders which could not be implemented.
Counsel for the mother was quick to observe that form should not triumph over substance but there was no substantive application here and the orders sought were not machinery provisions. He submitted that the Court had given all parties an opportunity to get their houses in order and bring whatever applications they so desired and the father had done nothing further.
It was submitted that the Z evidence was such that the order of McClelland J had been implemented and therefore there was no basis for change as the father had argued. He submitted that the child had gone to and for the intervention order process as a way of taking control himself and as such, the Court should not make an order that it well-knew could not be implemented.
Discussion
Much discussion was had during the hearing about how the Court could do anything that would make the intended orders work. As such, I propose only to summarise what I suspect is by now obvious.
In relation to the therapy, McClelland J made clear his reluctance to push the child too far. Indeed, notwithstanding the assertions of the father about the mother, the child appears to have taken things into his own hands. If the father is right, there is little more the Court can do to undo that damage. I agree with the submissions of counsel for the mother that the Court should not make orders that it knows will not be implemented. Even if Ms M was appointed and the mother was ordered to take the child, two questions are immediately obvious:
(a)What guarantee is there that the child would go? Whilst the mother might be compelled to do all of the things I mentioned earlier, the risk of non-compliance here must be seen as high;
(b)Why would a therapist with some understanding of the intervention order embark upon an exercise which could lead nowhere if ultimately there was a wish on the therapist’s part to have father and son together?
I agree also with counsel for the mother that the course has been run in the orders and extending its life (if I could) would require consideration of a power which I doubt exists in law without a fresh initiating application.
The application for the therapy order must fail.
The issue of the portal is also problematic. The father has rights at law and although his counsel suggested a solution was for the court to “request” the school to co-operate, or for the court to declare the position more carefully than did McClelland J, my view is that the synopsis that I have set out earlier is as clear as I can make it. This Court does not direct principals of schools how to care for their students and its orders are made on an in personam basis as against parties to its litigation. If the school determines that access to the portal(s) is a contractual right of parents vis-à-vis the school or one over which it considers it has ultimate responsibility regardless of parental responsibility rights of the nature I earlier mentioned, then the relief or remedy for the dissatisfied father does not lie in this Court but rather under the laws of the State.
Counsel for the father observed that courts make these sorts of orders and requests all the time and no doubt there is uncertainty, if not confusion, in the minds of principals but that does not mean that the order is within the proper exercise of the judicial power of the Commonwealth. It is why schools have legal advisers who can indicate what rights parents have and what obligations schools have to fulfil from the state’s perspective.
Section 65D of the Act is where the jurisdiction of the Court is found and it provides that the court may make such order as it consider proper. The powers of the court are found in s 64B of the Act and in my view, it is a bridge too far here to order that the mother simply sign any necessary authority to the school to provide the father with access to various portals when I have no idea whether or not the school is agreeable, let alone comfortable, with such an approach. In my view, the mother has made her position clear as did the Court in December 2017 and there is little, if any role for the court to revisit those matters. That part of the application must also fail.
Objection to subpoena
The third issue in this case concerned a subpoena issued by the Court to the school to produce documents that were wide-ranging and in my view, inappropriate.
The subpoena was issued on behalf of the Court by a registrar. It therefore became a court order in and of itself requiring the recipient to comply. The school did so.
The mother, but not the school, lodged an objection to the release of the documents produced although her objection also claimed that the subpoena was wide and oppressive; a point not raised by the school.
The documents sought were generally described by counsel for the father as those that he could not get from the school itself but I consider the subpoena was drawn much wider. It included memoranda and notes and anything to do with conversations between the mother and the school.
It seems, although not clearly so, the father had sought various documents from the school and had been denied his wish. That alone is not a basis for issuing a subpoena. More concerning also was the fact that the subpoena was described as having been delivered to the court and was issued. If so, the Court was wrong in issuing it. Before any such order (bearing in mind that is what it is) is made and particularly one which has a substantial invasion of a third party’s privacy, inquiries must be made as to the relevance of the documents sought. Contrary to some apparently popular belief, issuing a subpoena is not just another administrative act.
In Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100–101, Powell J laid down a number of bases upon which a subpoena could be set aside, one of which was where it was used for the purpose of obtaining discovery against a third party. To avoid that accusation, or one of “fishing”, that is, looking around for a cause of action, one has to look at the connection of the documents with the substantive issue to be determined by the court.
The test is whether the documents have “apparent relevance” to the issues in the proceedings (see Hatton (2000) FLC 93-038). To satisfy that test, one must first establish that what one has been told needs to be examined for its accuracy. What relevance would there be here in what the mother told the school such as to affect the substantive issues about the therapy and the portal? In respect of the latter, it could only be that there was something in the school’s notes to show that therapy was being thwarted or resisted.
Before this subpoena was issued, the Z advice was known. To the extent, as counsel for the father put it, what was in the notes might have assisted the therapist, that would very much depend upon the likelihood of an order being made and in any event, if the therapy did proceed, why could not the therapist talk to the school?
In Malloy & Stopford Malloy [2017] FamCAFC 205, the Full Court looked at an entirely different matter relating to a dispute over a family trust but the principles remain the same.
The trial judge concluded that a husband's historical interest in an entity once controlled by him was “understandably important” to the wife’s claim for property relief. There were inter-company debts. The trustee objected to production on the basis there could be no legitimate forensic purpose to the provision of documents. The Full Court rejected the argument and observed there did not need to be a concluded view as to relevance, but rather it was “apparent relevance that is necessary and there need only be a legitimate forensic purpose established”.
In this case, I do have a concluded view that there is no relevance let alone apparent relevance to the substantive issues including the issue of the portal because in that case, the father has rights he can enforce vis-à-vis the school. However, I find there is no legitimate forensic purpose because the father’s own stated purpose was to get documents that he could otherwise have not been given voluntarily. What the mother told the school and what it thinks about the father, and indeed the court’s orders, cannot advance the father’s case. It also goes without saying that the court should not have issued a subpoena when there was no extant substantive application.
Jurisdiction, the rules, substance over form
As earlier observed, counsel for the mother submitted there was no initiating application upon which the father’s application in a case could be brought. Chapter 5 of the Family Law Rules 2004 provides that interim applications can only be brought if the party has made an application for final orders in that cause of action and final orders have not been made. That rule is to ensure that there is a focus on substantive relief a concept common to most jurisdictions. True it is that the court could dispense with the relevant rules and treat the application as one of substantive relief but that would be difficult here having regard to its terms but also that there has been no endeavour by either party to seek to alter the substantive parenting orders.
Added to those remarks, it is also important to bear in mind s 97(3) of the Act which requires the Court in proceedings under the Act to proceed without undue formality and to ensure the proceedings are not protracted.
Having said that, what the parties put in issue remains the parameters of the dispute. As the Full Court very recently observed in H & H & L (unreported 10 May 2018 Full Court) even parenting proceedings, “are not to be equated with inquisitorial proceedings” (citing T and S (2001) FLC 93-086 at 88,522 [196].) The Full Court went on to say that the Court “is not an investigative body conducting an inquisition but rather it is an adjudicative body determining a dispute that is brought before it” (citing M v M (1988) 166 CLR 69 at 76.)
In the circumstances, it is unnecessary for me to rule as to jurisdiction, form or substance for the reasons as earlier set out.
The father’s application is dismissed. The subpoena is set aside. The objection to the subpoena is therefore dismissed. The mother’s response to the father’s application in a case is also dismissed. The documents produced under the subpoena are to be forthwith returned to the school principal.
I certify that the preceding Seventy Two (72) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 15 May 2018.
Associate:
Date: 15 May 2018
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