WATERMAN & WATERMAN

[2017] FamCA 394

FAMILY COURT OF AUSTRALIA

WATERMAN & WATERMAN [2017] FamCA 394

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Objection to subpoena – Where apparent relevance of the documents sought – Where notice of objection to subpoena dismissed.

FAMILY LAW – PRACTICE AND PROCEDURE – Affidavits – Where application made to release affidavit of witness to single expert – Where application for leave to administer questions to Single Expert – Where application granted.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth) r 15.65

Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905

APPLICANT: Ms Waterman

RESPONDENT: Mr Waterman

INDEPENDENT CHILDREN’S LAWYER: Ms Maddaford

FILE NUMBER: PAC 3930 of 2015

DATE DELIVERED: 15 May 2017

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Foster J

HEARING DATE: 15 May 2017

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Campton SC

SOLICITOR FOR THE APPLICANT: Solari & Stock Lawyers

COUNSEL FOR THE RESPONDENT: Mr Cook

SOLICITOR FOR THE RESPONDENT: Bowral Legal

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Maddaford of Evans Family Lawyers

Orders – Objection to Subpoena

1. The Notice of Objection filed 28 March 2017 be dismissed.

2. Leave is granted to all parties to have access to all documents produced on subpoena by the Proper Officer, Telstra Corporation Limited.

3. Leave is granted to the Independent Children’s Lawyer to have photocopy access to all documents produced on subpoena in these proceedings.

Orders – application in a Case Filed 29 March 2017

1. The solicitors for the wife have leave to provide to the single expert Dr B the affidavit of Ms C sworn 17 March 2017 and filed 22 March 2017.

2. Within 28 days from this date both parties and the Independent Children’s Lawyer have liberty to administer questions to the single expert pursuant to Rule 15.65 of the Family Law Rules 2004 for the purposes of clarifying the single expert report consequent upon the receipt by the single expert of the affidavit of Ms C.

COSTS

1. That both parties’ costs of the application be reserved.

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 Waterman & Waterman 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 PARRAMATTA

FILE NUMBER: PAC 3930 of 2015

Ms Waterman

Applicant

And

Mr Waterman

Respondent

EX TEMPORE

REASONS FOR JUDGMENT

Objection to subpoena

1. The first application before the Court today is the determination of an objection to a subpoena, the subpoena being a subpoena filed on 13 March 2017, returnable, it appears, no later than 30 March 2017, filed by the solicitors for the wife in these proceedings and directed to “The Proper Officer, Telstra Corporation Limited”.

2. The subpoena seeks, in fairly broad terms, the production of all information, including but not limited to:

   a)itemised telephone records, including text messages, for mobile phone number … for the period 1 May 2013 to the present date, registered in the names of [D Pty Ltd] or [Mr Waterman], the husband in these proceedings, born … 1967.

3. The Notice of Objection to Subpoena filed on 28 March 2017 by the husband seeks to object to the production of documents on the basis that firstly, Ms C is not a party to the proceedings, and secondly, the request for such records is merely a fishing expedition made by the respondent mother and the records will not provide any relevant evidence with respect to the children and property matters that are currently on foot. 

4. The relevance as to Ms C being a party or otherwise is not immediately apparent. 

5. The test in relation to objections to subpoena is well settled, and it requires the applicant to demonstrate that there is apparent relevance in relation to the documents sought to be produced: see for example Baumann and Ors & Rushbrooke and Anor [2016] FamCA 905 per Austin J.

6. The husband’s conduct has been the subject of some comment in relation to matters arising from the report of Dr B, the Single Expert in these proceedings, and further evidence subsequently filed for the purposes of trial by the wife, wherein at least one of her witnesses gives evidence of unusual conduct on behalf of the husband relating to sexual conduct and/or communication of a sexual nature.

7. The husband, it appears in the report by Dr B, expressly rejected any such contention.  So the issue has become a live issue for the purposes of trial.

8. In all of the circumstances, the Court is satisfied that the material produced on subpoena that is presently before the Court has some prima facie relevance to the issues for determination being communications emanating from or received by the husband. 

9. Of course, whether indeed any of the documents are finally tendered at trial will not be known until final hearing.

10. In all of the circumstances, it is ordered that the Notice of Objection filed 28 March 2017 be dismissed.

11. I grant leave to all parties to have access to all documents produced on subpoena by the Proper Officer, Telstra Corporation Limited and grant photocopy access to the Independent Children’s Lawyer.

Application in a Case filed 29 March 2017

1. The second aspect of the applications before the Court today is the Application in a Case filed by the wife on 29 March 2017 seeking an order that an affidavit of her witness, Ms C, sworn 17 March 2017 and filed 22 March 2017, be provided to the single expert clinical psychiatrist, Dr B, being the single expert for the purposes of the parenting proceedings between the husband and wife.

2. The wife also seeks an order that within 21 days, both parties and the Independent Children’s Lawyer may, should they wish, pursuant to rule 15.65 of the Family Law Rules 2004, administer questions to Dr B, the Single Expert, in writing for the purposes of clarifying his report, consequent upon the affidavit of Ms C being provided to the single expert.

3. The single expert report of Dr B deals with issues relating to the husband’s sexual conduct, and other sexual aspects of his behaviour, including communications both electronic and otherwise.

4. As a consequence of certain denials made by the husband in the report, Dr B expresses no concerns in relation to the husband’s alleged behaviour.  The wife asserts that the evidence of Ms C should be put to Dr B so that, in a more measured way by the administration of questions, he can have regard to her proposed evidence and express a view as to whether that evidence, in any event or at all, affects the underlying premise of his opinions expressed in his Single Expert’s report.

5. Trial directions provide in any event for affidavit material to be provided to the Single Expert in a timely manner before the commencement of the final trial.

6. The application before the Court is supported by the Independent Children’s Lawyer, who informs the Court today that Dr B has indicated his preference for the material to be provided to him well prior to trial in order that he can then respond in a more measured way with answers to specific questions administered by either party or the Independent Children’s Lawyer.

7. The Court is satisfied that the issue has significant relevance in the context of the proceedings, and in those circumstances, and for the purposes of the efficient management of these proceedings to trial, it’s proposed to grant the application of the wife.

8. The wife seeks her costs of the application. Whether the application is well founded will await evidence at trial. It is appropriate that costs be reserved.

9. Orders will be made accordingly.

I certify that the preceding twenty (20) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Foster delivered on 15 May 2017.

Associate: 

Date:  8 June 2017