Todd and Todd and Anor

[2015] FamCA 850

FAMILY COURT OF AUSTRALIA

TODD & TODD AND ANOR [2015] FamCA 850

FAMILY LAW – Subpoena objection where no material anyway.

Family Law Act 1975 (Cth)

Hatton v The Attorney-General(Cth)[2000] FamCA 892; (2000) FLC 93-038
National Employers Mutual General Association Ltd v Waind and Hill[1978] 1 NSWLR 372

APPLICANT: Mr Todd

RESPONDENT: Ms Todd

INTERVENOR: Mr Frost

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 9179 of 2014

DATE DELIVERED: 12 October 2015

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Cronin J

HEARING DATE: 6 October 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Dellidis

SOLICITOR FOR THE APPLICANT: Westminster Lawyers

COUNSEL FOR THE RESPONDENT: Ms Wheeler

SOLICITOR FOR THE RESPONDENT: Schembri & Co Lawyers

COUNSEL FOR THE INTERVENOR: Ms Faba

SOLICITOR FOR THE INTERVENOR: Stenta Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Jenkins, Victoria Legal Aid

Orders

1. That the subpoenae issued by the Court at the request of the husband to Victoria Police and Queensland Police seeking information about Mr Frost are both set aside and the objections of Mr Frost are upheld.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Todd & Todd and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 9179  of 2014

Mr Todd

Applicant

And

Ms Todd

Respondent

And

Mr Frost
Intervener

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

1. On 25 June 2015, a registrar at the request of the husband in these parenting and property proceedings issued a subpoena to Victoria Police to produce documents. What was sought was all of their records about Mr Frost. A second subpoena was issued to Queensland Police in a similar vein.

2. Both Police Forces responded to the Court’s order.

3. Mr Frost lodged a written objection on 1 October to the release of whatever was produced under the subpoenae. His reasons were that the subpoena was “too wide” and the “records are irrelevant”.

4. A brief explanation for the delay between the filing of the subpoena and the lodging of the objection is necessary. The subpoena was originally returnable on 15 July but on that date, the registrar, quite appropriately, said there was no evidence of service of the subpoena on Mr Frost or any notice that his privacy was being invaded. The subpoena was adjourned to 24 July by which date, a different registrar again noted the absence of service on Mr Frost and adjourned the release issue to 16 September.

5. On 16 September, Mr Pappas QC appeared for Mr Frost so one might conclude that Mr Frost had finally been put on notice of what was happening.

6. The registrar insisted that proper process follow and that a written objection be filed. Hence, the document filed by Mr Frost on 1 October.

7. The return date was then to have been 14 October but as the parenting and property dispute had been handed to me to make directions for trial and Mr Frost was represented, I agreed that I would hear the subpoenae dispute. I did so on 6 October.

8. Mr Frost appeared this time by his solicitor Ms Faba. She submitted that the subpoena was too wide because it was all encompassing about anything that Ms Faba had had to do with both the police. Ms Faba challenged the relevance of whatever the material was in the records. She said that Mr Frost was no longer in a relationship with the wife but was now a “support” person for her. He described himself as her friend.

9. On 1 October, Mr Frost also filed an affidavit with his objection saying much the same as what Ms Faba had submitted. His affidavit was more of a submission that a statement of fact.

10. The action of the practitioners for the husband to seek the subpoenae seems to lie in an incident that the husband described in an affidavit he filed on 17 June. In that, the husband described what could only be interpreted to have been an ugly confrontation between Mr Frost and the husband. The wife filed a responding affidavit on 15 July where the facts were put in issue. Her evidence disputed the extent of the incident and gave her version of what occurred. The significance of the situation was that the parties’ only child was present.

11. As I indicated in discussion, if Mr Frost was to be involved in any way with the wife in the future, his conduct and importantly, his general attitude to the husband and any past modus operandi about how he resolved or participated in disputes might be relevant. Even allowing for the evidence being disputed and untested, there is no dispute that a meeting of some kind had occurred on the relevant date.

12. The parties had interesting positions. The wife said her client would give an undertaking that Mr Frost would not be present when handovers of B occurred. That did not satisfy the husband and one could understand that he seemed to be suggesting that his concern about Mr Frost was not just limited to handover times. Mr Frost’s written and oral position was that the Court could examine the records to decide their relevance bearing in mind the limited view that the Court could take on this untested evidence.

13. In the well-known decision of National Employers Mutual General Association Ltd v Waind and Hill[1978] 1 NSWLR 372, Moffitt P identified the three steps in the procedure of having a third party bring documents to court pursuant to a subpoena and their use thereafter. Only two of the steps are relevant here.

14. The first step has been fulfilled. Both Police Forces have responded.

15. The second step identified above concerns the release of materials produced under the subpoena.

16. This Court as with all courts, cautiously guards the rights of non-parties because of the possibility of an unnecessary invasion of private rights of a stranger occasioned by the operation of a subpoena. Prima facie, Mr Frost is entitled to that protection.

17. The step of releasing private information cannot be taken unless the party seeking it can show there is some relevance in the proceedings before the Court. To do otherwise could lead to a spurious invasion of the non-party’s privacy. Simply put, the documents must be relevant in the proper conduct of the litigation such as to justify the overriding of the rights of the individual. In a parenting case whilst the welfare of the child must be balanced against the rights of a non-party, it is not sufficient to simply say that the welfare of the child automatically overrides those rights.

18. In this case, it is not necessary for me to deal with the so-called third step.

19. It is also unnecessary for me to examine in depth the “apparent relevance” issues (see for example Hatton v The Attorney-General(Cth)[2000] FamCA 892; (2000) FLC 93-038 at 87,606) because of two things. First, there is no material to be released as can be seen from what follows but the second reason is that Mr Frost wanted the subpoenae set aside because there was no basis for them to have been issued (on his claim as to both width and relevance). Thus, any relevance the wife may want to rely upon as to Mr Frost’s absence of criminal history in Victoria and Queensland was not canvassed.

20. It is common practice for a judge to inspect documents in order to determine whether they are relevant and no-one resisted that occurring.

21. When the Victoria Police envelope was opened by me, it contained a statement that the author was unable to identify any details which matched the information given her about Mr Frost. Whilst somewhat confusing, a second letter was provided which repeated the position.

22. When the Queensland Police envelope was opened by me, it too provided a statement that there was nothing to say about Mr Frost.

23. Whilst it might be perplexing to consider that Mr Frost said no such thing in his affidavit nor that any such statement was made by either his senior counsel previously nor his solicitor this time, that is not to the point.

24. I find therefore that there is nothing of relevance to the proceedings in the material so produced.

25. The subpoenae must be set aside and the objection upheld.

I certify that the preceding Twenty Five (25) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Cronin delivered on 12 October 2015.

Associate:

Date:  12 October 2015