Father wins appeal to re-litigate final parenting orders :Henley & Henley [2019] PRACTICE AND PROCEDURE – Subpoena
Henley & Henley [2019] FamCA 101 (28 February 2019)
The father sought to re-litigate final parenting orders in 2018. It was determined there was no sufficient change of circumstance to justify re-litigation on any issue other than that remitted for rehearing by the Full Court.
Fast forward to 2019, the father is seeking an equal time regime with child A, to support his argument in preparation for the hearing of the remitted matter, the father sought leave to issue a subpoena directed to the Principal of W High School for the attendance records for the mothers other child F (from a previous relationship).
The father alleges child A had significant absences from school (28 days in 2018) whilst in the mother’s care, which he says occur because the child is taken from Adelaide to Town P so the mother can spend time with her boyfriend. The father asserts child F attendance records will align with child’s A attendance records to support his claim, he then plans to argue that an equal time routine will reduce the number of absent days for child A (the child will be with the mother less).
The mother asserts the child’s absences from school are of no concern to the school staff as “all absences have been explained.” In support of that argument, she attached a copy of a letter from the child’s school.
However, the Registrar refused the father’s request to issue the subpoena “on the ground of lack of sufficient legitimate forensic purpose.”
The father now seeks a review of the Registrar’s decision.
FACTS SUMMARY:
- Review of Registrar’s decision to refuse the father’s request to issue a subpoena for school attendance records.
- The refusal is on the ground of lack of sufficient legitimate forensic purpose.
- The solicitor for the mother conceded that at trial the Court would need to determine the genuineness of the mother’s explanation for absences.
- The extent of absences from school of both children on the same day could possibly throw light on the issues in the main case.
ISSUE:
Was there a lack of legitimate forensic purpose to refuse the request of the subpoena?
HELD:
The decision of the Registrar is set aside, and permit the father to issue the subpoena as sought.
In determining this matter Rule 18.10(1) of the Family Law Rules sets out that a review of a Registrar’s determination is an original hearing, in the sense that error does not need to be established.
Furthermore, a subpoena will have a sufficient legitimate forensic purpose if it appears to be “on the cards” that the document sought would materially assist a party in their case,[6] or it could possibly throw light on the issues in the substantive proceedings.[7] These principles have been acknowledged as applying in this jurisdiction by the Full Court: White & Tulloch(1995) FLC 92-640.
The mother’s solicitor made a surprising concession that at trial the judge will need to establish as a matter of fact the authenticity of the mother’s reasons for the child’s absences from school. The Judge then determined the absences from school of both children on the same day “could possibly throw light on the issues in the main case” and it is “on the cards” that F’s documented absences, may materially aid the father and assist the issue of what degree the child should spend time with him. The legitimacy of that forensic purpose is not to be dismissed at this point.
Moreover, it was contended that if the documents don’t support shared absence of both children, then it’s still possibly an applicable matter in this case, although not necessarily of support to the father.
[6] Alister v R [1984] HCA 85; (1984) 154 CLR 404 at [414] per Gibbs CJ.
[7] Trade Practices Commission v Arnotts Ltd (No 2) (supra).