Darvish & Karo (No 6) [2025] FedCFamC2F 693 (23 May 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These proceedings were commenced on 29 November 2023, in relation to divorce of the relevant parties. Subsequently, the proceedings have proceeded and been fixed for a final parenting and property hearing to take place on 16 June 2025 pursuant to orders made on 10 September 2024. Those orders that were made on 10 September 2024, included a s102NA order which in its terms identified that neither party will be permitted to cross-examine the other. The consequence of having made that order is that each party is entitled to Legal Aid through Commonwealth funding. There was a note to that effect in the orders.
2. The matter has been brought back before the Court today as a result of the filing of a number of notice of objections on behalf of the applicant mother ("the mother") of the child, who is now nine years old, in relation to inspection of material produced on subpoena. Ms Mahony of counsel on behalf of the mother seeks a limitation in respect of the inspection of subpoena material to the legal representatives of the parties. That is sought in circumstances where it is contended that the material may otherwise be misused, in a way which may not only adversely impacts upon the parties but, could also be contrary to the best interest of the child. The Court identified that it was considering making an order that inspection of any material produced under subpoena will be confined to the legal representatives. The respondent father ("the father") told the Court that he had contacted Legal Aid but could not identify when and said that it was many months ago. There is no material before the Court to establish that the father has taken proper steps to obtain the Legal Aid representation to which he was entitled because of the s 102NA order made on 10 September 2024.
3. Because the proceedings are ones that have been fixed for both parenting and property, the objects in relation to parenting proceedings in s 60B of the Family Law Act 1975 (Cth) ("the Act") and the principles in s 69ZM of the Act have application. In making orders in these proceedings, the Court must take into account the paramount consideration of the best interests of the child.
4. The father is in Country B and has identified at this stage he does not propose to come to Australia. The Court is not in a position to determine whether proper steps have, in fact, been taken by the father to obtain Legal Aid representation promptly and in accordance with the orders that were made in September last year. However, at this stage upon the material before the Court, the father was entitled to such representation. Having failed to take those steps, as it appears at this stage, the Court has to consider whether or not it should permit inspection by the father from overseas. Such inspection would entail copying the documents and providing them to the father.
5. The history of the proceedings is an unhappy one in relation to which the Court accepts Ms Mahony's submission that there is at least a real risk that the documents, if provided directly to the father, would be used otherwise than for the purposes of these proceedings. All documents produced under subpoena are the subject of an enforceable legal obligation that they are not to be used for any purpose other than the proceedings in which the subpoenaed material is obtained without the leave of the Court. The reason why there is such a legal obligation is to ensure that subpoenaed material is not used for any other purpose.
6. In the present case, the Court is concerned that there is a real risk that the father, if permitted direct access to the material in Country B, could use the material for purposes other than confined to these proceedings. The father has made erroneous assertions as to his entitlement to cross-examine. He has no such entitlement in respect of the mother as a result of the s 102NA order made. The father has made assertions of entitlements as a matter of fairness or fundamental rights which are equally misconceived. The Court has control over documents produced under subpoenas and it has a responsibility to ensure that there is no abuse in relation to the use of material produced under subpoenas. The Court would add, in considering whether or not it is appropriate to make an order confining the material that has been produced under the subpoenas, the subpoenas that have been issued by the father on their face, were ones, in respect of which an application could have been made to set them aside. No such application has been made. However, the Court is taking that into account in the context of the existence of a risk. On the face of the content of what is sought in the subpoenas by the father they were vexatious. The Court regards that as a factor further weighing in favour of the existence of the risk identified by Ms Mahony. The Court notes that the ICL supported the making of the orders that would confine the documents produced on subpoena to the legal representatives.
7. In the course of trying to deliver this judgment, the father, interrupted the Court and despite being told to cease to do so, the father continued to try and speak over the Court and had to be muted. That conduct is conduct that the Court has also taken into account in identifying whether or not there is an existence of a real risk of the misuse of the material if it was to be provided physically to the father.
8. It is a matter for the father whether he wishes to come to Australia to attend the hearing in person. If he does so, he will be given physical access to the documents in person. Having identified that he does not propose to do so, I do not intend making an order in that regard. If the father adduces proper and satisfactory evidence that he has made genuine and proper attempts to obtain Legal Aid through Commonwealth funding and has been unsuccessful, the Court may revisit the issue of whether or not access should be provided to the subpoena material.
9. It is for these reasons that the Court makes the above orders.

I certify that the preceding nine (9) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Street.