Gade and Jabbar (No.18)

[2017] FCCA 3431

FEDERAL CIRCUIT COURT OF AUSTRALIA

GADE & JABBAR (No.18) [2017] FCCA 3431

Catchwords:
FAMILY LAW – Procedural – application by the wife to issue subpoenas.

Legislation:

Family Law Act 1975 (Cth)

Applicant: MR GADE

Respondent: MS JABBAR

File Number: NCC 2265 of 2015

Judgment of: Judge Terry

Hearing date: 28 September 2017

Date of Last Submission: 28 September 2017

Delivered at: Gunnedah

Delivered on: 28 September 2017

REPRESENTATION

Counsel for the Applicant: Mr Bithrey

Solicitors for the Applicant: NLS Law

The Respondent: In person

Solicitors for the Independent Children’s Lawyer: Legal Aid NSW Newcastle

ORDERS

1. The respondent’s oral application to issue subpoenas to the Department of Immigration and the High Commissioner of (country omitted) in Australia is dismissed.

2. The matter remains adjourned to 4.15pm on 18 October 2017 for submissions.

IT IS NOTED that publication of this judgment under the pseudonym Gade & Jabbar is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT NEWCASTLE

No. NCC 2265 of 2015

MR GADE

Applicant

And

MS JABBAR

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons for judgment were delivered orally and have been corrected from the transcript. Grammatical errors have been corrected and an attempt has been made to render the orally delivered reasons amenable to being read.

2. I have to consider whether to permit the issue of a subpoena to the Department of Immigration as outlined by Dr Jabbar in an email she sent to my Associate which I have marked as an exhibit in the proceedings. The email was dated 22 October 2017.

3. I listed the matter today to consider Dr Jabbar’s request because after the email was received my Associate inquired with the other parties to the matter, the Independent Children’s Lawyer and Dr Gade’s counsel, as to whether they consented to the subpoena being issued. They both said that they did not consent. 

4. When I called the matter on a little earlier Dr Jabbar informed me that she now also wished to issue a subpoena to the High Commissioner of (country omitted).

5. As Dr Gade’s counsel pointed out a fundamental problem for Dr Jabbar is that her case is closed. Her evidence finished after her last witness gave evidence on 7 September so even if Dr Jabbar obtained evidence via subpoena she could not make any use of it. She would first have to make an application to reopen her case and only then could she make some use of the documents. In that respect I agree with the submission by Dr Gade’s counsel that the subpoena lacks forensic purpose.

6. It also lacks forensic purpose because the only purpose of it is to impugn the credit of a witness as to what happened to a particular telephone and I am not convinced that allowing the subpoena to be issued and allowing the credit of that witness to be impugned, if the information produced does in fact impugn the witness’s credit, is going to assist me to determine what should happen in relation to the two children, where they should live and whether and if so to what extent, they should spend time with each of their parents.

7. Another matter that concerns me is that there may be an ulterior motive for the issue of the subpoena. Dr Jabbar indicated when we were in Court on 7 September 2017 that she was intending to take action in other courts against the husband and his witness for perjury and also perhaps to make a complaint to the police although I would have to check the transcript if one is ever produced to confirm that.

8. I was concerned when I was informed that Dr Jabbar was seeking to have the subpoena issue that her purpose may not be anything to do with the trial before me but may have an ulterior motive. Dr Jabbar’s last submission confirms that I am right to have that concern and that is another reason why I would be disinclined to allow the subpoena to be issued.

9. Finally I am concerned about the issue of delay. If a subpoena is issued to the High Commission of (country omitted), in Australia or anywhere else, I have no idea how long it is going to take for the subpoena to be answered as it may require documents in (country omitted) to be obtained, and there is a serious risk that the result will be that the conclusion of this trial will be delayed. There is also a risk that other people may need to seek to reopen the evidence if the subpoena is issued. 

10. I am not satisfied that Dr Jabbar has demonstrated that the circumstances are such that leave should be given for her to issue the subpoenas to the Department of Immigration or the Commissioner of (country omitted) in Australia, and I am going to dismiss her oral application to do so.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of Judge Terry.

Date:     15 October 2018