Wallace and Wagner and Anor - [2020] FCWA 63

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: WALLACE and WAGNER & ANOR [2020] FCWA 63
CORAM: O'BRIEN J
HEARD: 17 APRIL 2020
DELIVERED : Ex tempore
FILE NO/S: PTW 168 of 2017
BETWEEN: MR WALLACE
Applicant
AND
MS WAGNER
Respondent
AND
LAW FIRM A
Intervener

Catchwords:

PRACTICE AND PROCEDURE - Dispute as to arrangements to be made for participation by witnesses at trial and effect of COVID-19.

SUBPOENAS - Where wife objects to subpoena to produce documents in relation to overseas travel in circumstances where her financial circumstances are relevant and in dispute - objection dismissed.

Legislation:

Family Court Act 1997 (WA)
Public Health Act 2016 (WA)

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr Moser
Respondent	:	Self Represented Litigant
Intervener	:	No appearance -excused
Independent Children's Lawyer	:	Ms Thomas

Solicitors:

Applicant	:	O'Sullivan Davies
Respondent	:	Self Represented Litigant
Intervener	:	No appearance -excused
Independent Children's Lawyer	:	Paterson & Dowding

Case(s) referred to in decision(s):

Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038
Mandic v Phillis (2005) 225 ALR 760
National Employers’ Mutual General Insurance Association Ltd v Waind & Hill [1978] 1 NSWLR 372
Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallace & Wagner has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1997 (WA).

1The parenting and financial proceedings between these parties are scheduled to proceed to trial on 22 July 2020. They have previously been delayed for reasons which are familiar to the parties and therefore do not need to be recounted.
2The matter came on this morning for a procedural hearing listed of the court’s own motion to prompt the parties to consider, well in advance of the listed trial, practical issues arising as a result of the COVID-19 pandemic.
3A brief outline of the relevant restrictions is appropriate.

COVID-19 restrictions

4On 23 March 2020, the Minister for Health declared a public-health state of emergency with effect from that day in respect of COVID-19, pursuant to s 167 of the Public Health Act 2016 (WA). On 31 March 2020, the relevant authority gave directions pursuant to various subsections of that Act prohibiting certain gatherings to prevent, control or abate the public health risk presented by COVID-19.
5Those prohibitions expressly do not apply to courts and tribunals, which are recognised as essential services.
6Nevertheless, all West Australian courts have taken steps to ensure that they continue to provide their services to the extent possible, and consistent with public health and safety.
7In this court, those steps have included conducting hearings by telephone or video link wherever possible, and restrictions on personal attendance at court premises. Where physical attendance at court by litigants or…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FCWA 63
Decision Date: 20 APRIL 2020

CaseChat Overview and Summary

Wallace and Wagner and Anor was a case before the court where the primary issue was the arrangements for the participation of witnesses in a trial, particularly in the context of COVID-19 restrictions. The dispute involved a subpoena issued to the wife, requiring her to produce documents related to her overseas travel, which was relevant to a financial dispute between the parties. The wife objected to this subpoena, citing her financial circumstances as being in dispute. The court was required to decide whether the objection to the subpoena was valid and whether the impact of COVID-19 should influence the arrangements for the trial.

The court considered the objections raised by the wife and evaluated the necessity of the documents for the trial. It was determined that the documents were essential for the proper administration of justice and that the objection was not justified. The court also acknowledged the challenges posed by COVID-19 but found that it did not absolve the parties from their obligations to comply with court processes. The reasoning was grounded in ensuring that the trial could proceed fairly and effectively, despite the pandemic.

As a result, the court dismissed the wife's objection to the subpoena. This decision allowed the trial to move forward with the necessary documentation being produced. The court emphasized the importance of adhering to legal processes and the need for parties to provide relevant information to ensure a fair trial. The final orders of the court were that the wife must produce the documents as required by the subpoena, and the trial was to proceed with the arrangements made, taking into account the necessary health and safety measures related to COVID-19.

Orders