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Fishing in the Family Court - Darley & Darley

The recent case of Darley & Darley (No. 3) [2020] FamCAFC 289 (19 November 2020) is a reminder to draft your Subpoena properly.

This case is part of a series of cases that includes a vexatious litigant claim, but the Court repeatedly stated that the mother was still entitled to seek evidence and be heard.

The Court also stated that whether or not a Subpoena order is made is a separate question to whether or not the Full Court would give any weight to that evidence. While accepting that the medical practices that the mother wanted to subpoena would have relevant information, the court noted that -

... I do not consider that it would be reasonable to allow the issue of a subpoena to each of these three practices in the extraordinarily broad terms formulated by the mother, including that they are unconfined as to any timeframe at all. (my emphasis added)

The Court then went on to cite, favourably, some previous decisions in relation to subpoena material including -

A subpoena also cannot be used for the purposes of “fishing” or conducting a “fishing expedition”. A finding of “fishing” amounts to a finding that the subpoena has no legitimate forensic purpose because the documents are sought to discover if the issuing party has a case, not to support a case that has already been articulated: Commissioner for Railways v Small [1938] NSWStRp 29; (1938) 38 SR (NSW) 564 at 575. A finding of “fishing” also appears to involve a question of oppression. A subpoena will be more readily set aside if great numbers of documents are required to be produced in circumstances where it cannot be demonstrated that they are likely to be sufficiently relevant: Dorajay at [34]. (my emphasis added)

There is a discussion around the dates, but not the other factors. It would appear that the first child in the relationship was born in 2006 and the Court felt strongly that medical records before that date were not, on the face of it, relevant. The court then went on to mention 'numerous categories of documents' which were not relevant, and while the judgment includes the agreed upon more narrow definition of documents sought it is not clear what the other 'numerous categories of documents' were.

This case is not long, and it is a good case to read to update a practitioner (or educate a junior practitioner) on the rules around supboenas and how the Family Court would apply those.


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