Vader & Dantes
[2022] FedCFamC1F 613
•12 August 2022
Federal Circuit and Family Court of Australia
(DIVISION 1)
Vader & Dantes [2022] FedCFamC1F 613
File number(s): SYC 2265 of 2014 Judgment of: HARPER J Date of judgment: 12 August 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Application for recusal on the basis of actual bias and apprehended bias – Where the application for recusal is limited to procedural hearings – Where father asserts bias due to his advocacy and law reform work – Application for recusal refused – Father also seeks adjournment of final hearing dates asserting insufficient time to prepare and file evidence – Time extended for father to file and serve one updated consolidated trial affidavit – Adjournment application not pressed.
FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Father objects to updating subpoenas to NSW Police and child’s school – Party issuing impugned subpoena must demonstrate that documents sought have “apparent relevance” to issue in proceedings – Where father accepts relevance of the first subpoena but asks for the subpoena to be varied to extend its scope – Where court satisfied that the material sought by the second subpoena has apparent relevance – Objections dismissed.
Cases cited: Baumann & Rushbrooke [2016] FamCA 905
Kehoe & Seden (No 2) [2022] FedCFamC1F 346
Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507; [2001] HCA 17
Nagel & Clay (2020) 60 Fam LR 550; [2020] FamCA 326
Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700; [2001] EWCA Civ 1217
SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668
Division: Division 1 First Instance Number of paragraphs: 22 Date of hearing: 12 August 2022 Solicitor for the Applicant: Swaab The Respondent: Litigant in Person Solicitor for the Independent Children's Lawyer: Ark Law ORDERS
SYC 2265 of 2014 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS VADER
Applicant
AND: MR DANTES
Respondent
INDEPENDENT CHILDREN'S LAWYER
order made by:
HARPER J
DATE OF ORDER:
12 AUGUST 2022
THE COURT ORDERS THAT:
1.Time be extended for the Respondent Father (“the father”) to file and serve one updated consolidated trial affidavit by no later than close of registry filing on 5 September 2022.
2.The father’s Application in a Proceeding seeking an adjournment filed on 13 July 2022 otherwise be dismissed.
3.The father’s Application in a Proceeding seeking recusal filed on 8 August 2022 be dismissed.
4.The schedule to the subpoena issued to School E be varied to include the following words at the end of paragraph 2 of the schedule: “including documents in relation to the program called “[Program F]” and relevant to Y.
5.The objection to the subpoena issued to NSW Police be dismissed.
6.Leave be granted to the Independent Children’s Lawyer to issue such further subpoenas as required.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.IT IS NOTED that publication of this judgment by this Court under the pseudonym Vader & Dantes has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
HARPER J:
These are proceedings concerning the child, Y, born in 2013. Y is therefore currently nine years of age. As I have observed in earlier judgements, Y has, therefore, been the subject of litigation for almost her entire life. The proceedings are listed for final hearing commencing on 17 October 2022, with an estimate of some seven days. The final hearing will be presided over by a different judicial officer.
On 13 July 2022, the Respondent Father (“the father”) filed an Application in a Proceeding seeking to have the final hearing dates vacated.
This Application in a Proceeding was listed for hearing on 12 August 2022. On 8 August 2022, the father filed a further Application in a Proceeding seeking that I recuse myself. That application was given a return date also of 12 August 2022. On 21 July 2022, the Independent Children's Lawyer (“ICL”) issued two subpoenas, one to School E and the other to the New South Wales Police, and on 3 August 2022 the father filed Notices of Objection to both subpoenas. They were also listed for hearing on 12 August 2022.
Therefore on 12 August 2022, there were listed for hearing the following applications:
(1)the father's Application in a Proceeding filed on 8 August 2022 seeking I recuse myself;
(2)the father's Application in a Proceeding filed on 13 July 2022 for adjournment of the final hearing dates; and
(3)the father's Notices of Objection filed on 3 August 2022.
Bearing in mind that I am not the trial judge, the father's recusal application was limited to the question of whether I should recuse myself for the purposes of the procedural hearings, including the adjournment application and objections to subpoenas listed for hearing on 12 August 2022.
The father made extensive submissions in support of his recusal application. As I understood those submissions, he submits that there is both actual bias and a reasonable apprehension of bias.
Actual bias requires the applicant to show that a decision maker has a closed mind to the issues raised and is not open to persuasion of the applicant's case, and exists where the decision-maker has prejudged the case against the applicant or acted with such partisanship or hostility as to show that the decision-maker had a mind made up against the applicant and was not open to persuasion in favour of the applicant (Re Medicaments and Related Classes of Goods (No 2) [2001] 1 WLR 700 at [37]–[38]; Minister for Immigration and Multicultural Affairs v Jia Legeng (2001) 205 CLR 507 at [72]–[73] and [185]–[187]; SCAA v Minister for Immigration & Multicultural Affairs & Indigenous Affairs [2002] FCA 668 at [36]–[38]).
The legal principles governing a reasonable apprehension of bias are well-known and were adverted to by the father in his affidavit material. I set out the relevant principles governing a contention that the decision-maker should recuse themselves on the basis of a reasonable apprehension of bias in the decision of Nagel & Clay (2020) 60 Fam LR 550 at [136]–[138]:
136. This test has been articulated in a number of well-known High Court decisions. In Minister for Immigration And Multicultural Affairs v Jia Legeng (2001) 205 CLR 507, Gleeson CJ and Gummow J at 531-2 made clear in relation to an allegation of actual bias against a judicial decision-maker that “The question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion”. Where there is an allegation of apprehended bias, the test is “whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the Judge is required to decide”: Johnson & Johnson [2000] HCA 48; (2000) 201 CLR 488 at [11] (“Johnson”). In Ebner v The Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337 (“Ebner”) at 345 the High Court held the test of apprehended bias requires satisfaction of a two-step process. First, the identification of what it is said might lead a decision-maker to decide a case other than on its legal and factual merits. Secondly, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
137. It should be emphasised that the relevant reasonable apprehension is not that of, and is not determined by the subjective perceptions of, any party to the proceedings; it is the objectively determined reasonable apprehension of a hypothetical fair-minded observer. Nonetheless the impression that might reasonably be made on the parties by the facts is not completely ignored: Johnson at [52] per Kirby J.
138. The presumptive state of mind of the hypothetical observer has been the subject of much judicial attention. In Smits v Roach [2006] HCA 36; (2006) 227 CLR 423 at [95] Kirby J described this observer as a “hypothetical construct” who will be “familiar with the general nature and course of the proceedings, its outcome and the suggested disqualifying elements.” More recently the Victorian Court of Appeal has set out, with respect, a correct and succinct statement of the level of knowledge assumed for the hypothetical construct. In Doughty-Cowell v Kyriazis [2018] VSCA 216, that Court referred to [52] – [53] in Johnson and said at [79]:
The level of knowledge and sophistication which a fair-minded observer hypothetically brings to the question is that of a lay person (not a lawyer), informed as to the relevant facts of the case and sufficiently knowledgeable and informed to be capable of bringing a rational and reasonable assessment to bear.
The central question is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. In relation to the present application for recusal, that is limited to whether there is a reasonable apprehension I might not bring an impartial and unprejudiced mind to the resolution of whether there should be an adjournment of the final hearing.
As already noted, the father made a range of submissions which included assertions that because of his work, which is either actually or implicitly critical of this Court, and because of the existence of what he claimed were unilateral communications by the mother to my chambers, and the manner in which I had previously dealt with procedural matters shepherding this matter to final hearing, there was a reasonable apprehension of bias. In relation to actual bias, he adverted to the same matters concerning how procedural directions had been made in the past.
This matter has a long and complex procedural history, but relevantly, on 8 November 2021, the father had brought earlier recusal applications. Those applications were withdrawn on several bases, including the fact that the Court could allocate the final hearing dates of 17 October 2022 to 25 October 2022. The matter was listed for mention then on 9 February 2022, where orders were made that no further affidavits were to be filed in the proceedings without leave of the Court. This is important because orders had been made on 11 March 2021 for the father to file and serve a consolidated trial affidavit and other affidavits upon which he proposed to rely initially by 9 July 2021, and then with an extension to 31 August 2021.
On 3 September 2021, the father filed and served what he called “place-holding” affidavits, but I note his consolidated trial affidavit at that point already ran to some 134 pages, excluding annexures. The father contended that he understood the orders made on 9 February 2022 to preclude any further affidavit material, although the order clearly enabled a party to seek leave to file further affidavit material.
I am not satisfied that any of the matters the father has adverted to could satisfy the tests for either actual bias or a reasonable apprehension of bias. Accordingly, I propose to refuse the recusal application.
I turn, then, to the adjournment application. As the debate evolved, it became clear that the father wished to adjourn the final hearing dates because he was of the view he had not had a sufficient opportunity to put together his affidavit material. This was despite the earlier orders that I have adverted to and despite him conceding that between November 2021 and February 2022, he took no additional steps to make any preparation for final hearing, even though final hearing dates had already been allocated to commence on 17 October 2022.
He then contended that he took no further steps after February 2022 to marshal his material and put together additional affidavits, because he was under the impression that he was unable to do so because of the orders of 9 February 2022.
However, eventually, on the basis that he would be given a dispensation for an extension of time to file a consolidated trial affidavit, the father did not otherwise press his adjournment application. Accordingly, I propose to make orders that he can file an updating consolidated trial affidavit by 5 September 2022.
That leaves for consideration the objections to subpoenas. The first subpoena is addressed to the child's current school, School E. The schedule to the subpoena seeks the following documents:
1.a copy of this subpoena
2.All correspondence, file notes, memoranda, school counselling records, teachers notes, attendance records and any other documents held by you in relation to; [Y] DOB […] 2013
FROM 07/07/2021 TO CURRENT.
This subpoena was issued, as noted, by the ICL, and would provide information updating the material available from the child's school in relation to her. This follows an earlier subpoena issued by the ICL for the same or similar material.
In submissions, the father went to some length to explain why he had resistance to the issue of subpoenas because of the material relating to him that has been subpoenaed in the past and which caused him a great deal of offence. However, eventually he accepted that the material was relevant, but asked for the subpoena to be varied to include a reference to documents relating to a program called “[Program F]”. The ICL had no resistance to such a course, and I will make the appropriate order.
The second subpoena was issued to the New South Wales Police. That subpoena seeks the following documents in its schedule:
1.a copy of this subpoena
2.A copy of the full criminal history, including all charges, convictions, AVOs and bail history for the following individuals;
[Ms Vader] DOB […] 1973
[Mr Dantes] DOB […] 1968
3.A copy of all COPS narratives where the following individuals are named as a victim, complainant, witness, perpetrator or person of interest;
[Ms Vader] DOB […] 1973
[Mr Dantes] DOB […] 1968
[Y] DOB […] 2013
FROM 07/07/2021 TO CURRENT
The father contended there had been no convictions for criminal activity, and as I understood his submissions, suggested there was no apparent relevance to the material sought. The principles applicable to setting aside a subpoena were comprehensively stated by McClelland J (as he then was), in Baumann & Rushbrooke [2016] FamCA 905 at [25]–[45]. I distilled those principles relevantly in the decision of Kehoe & Seden(No 2) [2022] FedCFamC1F 346 at [13]–[19]:
13. The principles applicable to setting aside a subpoena were comprehensively stated by McClelland J (as he then was) in Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 at [25]–[42] (“Baumann”). McClelland J pointed out the party issuing an impugned subpoena must demonstrate the documents sought have “apparent relevance” to an issue in the proceedings, although, unlike discovery, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to “a train of inquiry” which might assist his or her case: at [31] citing McMillan Incorporated v Bishopgate Investment Trust (1993) 4 All ER 998 at 1005; Mulley & Marney v Manifold (1959) 103 CLR 341 at 345; T & D [2006] FamCA 1560 at [6]. It is not legitimate to issue a subpoena on the basis of “an outside chance” that something useful might turn up in the documents (at [33] citing R v Ridgeway (1998) 72 SASR 73 at 101) or to issue a “fishing” subpoena with a view to determining whether the issuing party has a case at all (at [35] citing Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476 at 85,856; see also Botany Bay Instrumentation and Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 per Powell J).
14. ...
15. The contention that a subpoena is an abuse of process usually rests on the underlying assertion that it has no “legitimate forensic purpose”, for example, because it is “fishing”. The question of apparent relevance in turn often, if not usually, underpins debates about legitimate forensic purpose and allegations of “fishing”. The primary contention of the third parties was that the documents sought in the impugned paragraphs lacked any apparent relevance to the issues in the proceedings.
16. The concept of “apparent relevance” in relation to subpoenas is of long standing. In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 88 ALR 90 at 103, Beaumont J used the expression in posing the question of whether the material sough[t] has “apparent relevance to the issues in the principle proceedings”. Numerous later cases have adopted the same or similar phraseology: Portal Software International Ltd v Bodsworth [2005] NSWSC 1115 at [20]–[24]; Lowery v Insurance Australia Ltd (2015) 90 NSWLR 320 at [12]; Baumann at [32] and [82] (“on the cards”); D v Australian Financial Security Authority [2017] NSWCA 50 at [56] (“sufficient apparent connection”). Re Force Corp Pty Ltd (in liq) [2018] NSWSC 896 at [22] and [24] explained “apparent relevance” as meaning something could “reasonably be expected” to “throw light” on some of the issues in the proceedings (see most recently in this Court Woodcock & Woodcock (2021) 64 Fam LR 489 at [48] (“Woodcock”).
17. The indeterminate boundaries of these verbal formulations are obvious, but it is recognised they have a wide embrace and often include documents about which the issuing party cannot have clear knowledge as to content or actual relevance. Recently, in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 in the NSW Court of Appeal, Bell P (as he then was) observed at [57] that the apparent relevance of documents is “one of the reasons why medical and telephone records, for example, are frequently the subject of subpoenas, even though it will not be known or knowable ex ante whether or not the subpoenaed material, will, or is likely to, assist the party issuing the subpoena”. He held that to insist on such an added requirement is artificial because it would require an issuing party to be able to predict the contents of potentially relevant documents and would “unduly constrain the ability of litigants to investigate the facts”, citing the decision of Brereton J in A v Z (2007) 212 FLR 255 at 257. Therefore, so long as a subpoena can plausibly be seen to relate to an issue in the proceedings (or to “cast light” on such an issue), and the subpoena is not in other respects too vague or oppressive, it should not be set aside.
18. Bell P pointed out the close connection between “apparent relevance” and a proper forensic purpose at [65]:
It is sufficient, in my view, to justify a subpoena as having been issued for a legitimate forensic purpose if the documents sought are “apparently relevant” or, to use the words of Nicholas J in [ICAP Pty Ltd v Moebes [2009] NSWSC 306] at first instance, it can be seen that the documents sought to be produced by way of subpoena will materially assist on an identified issue or there is a reasonable basis beyond speculation that it is likely the documents subpoenaed will so assist. Of course, if it can be shown that the material assistance will be to the party that issued the subpoena, the prospect of the forensic purpose of the issuing party being impugned as illegitimate will be virtually non-existent.
19. Bell P also pointed out that even an inability to demonstrate it is “on the cards” that documents will materially assist a party’s case, will not necessarily result in a subpoena being set aside. He continued:
80. My review of the authorities in relation to the setting aside of subpoenas and/or the refusal to permit access to documents produced leads me to the conclusion that, although a party will generally be able to demonstrate that it had a legitimate forensic purpose in issuing a subpoena where, to quote Simpson J (as her Honour then was, and with whom Spigelman CJ and Studdert J agreed) in [R v Saleam [1999] NSWCCA 86] at [11], it can:
(i) identify a legitimate forensic purpose for which access is sought; and
(ii) establish that it is ‘on the cards’ that the documents will materially assist his case,
at least in civil matters, an inability to demonstrate that it is “on the cards” that the documents sought will materially assist the subpoenaing party’s case will not automatically require either that the subpoena be set aside or that access to the documents produced be refused. It will generally be sufficient and prima facie evidence of a legitimate forensic purpose if the documents sought to be produced on subpoena have an apparent relevance to the issues in the case and or bear upon the cross examination of witnesses expected to be called in the proceedings.
It is important to emphasise that there are different steps involved in relation to material sought by a subpoena. What I am dealing with here is an objection to production. Production should be allowed where there is apparent relevance, as the authorities just referred to demonstrate. I am satisfied that the material sought from the NSW Police has apparent relevance to the parenting issues which will be the subject of final hearing. Whether or not any of the produced material ends up as part of the evidentiary record at trial is an entirely separate question, and it will be open to the father to make such appropriate objection as he may be advised at final hearing. Accordingly, I propose to dismiss the objection to the subpoena issued to the NSW Police.
I certify that the preceding twenty-two (22) numbered paragraphs are a true copy of the ex tempore Reasons for Judgment of the Honourable Justice Harper delivered on 12 August 2022. Associate:
Dated: 23 August 2022
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