Andrewson & Trudeau (No 2)

Case [2024] FedCFamC1F 764

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Andrewson & Trudeau (No 2) [2024] FedCFamC1F 764

File number(s): BRC 11543 of 2020
Judgment of: BAUMANN J
Date of judgment: 12 November 2024
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – Where the Independent Children’s Lawyer issued a subpoena directed to the Director of Public Prosecutions seeking production of documents – Where the Director of Public Prosecutions has objected on the grounds of legal professional privilege and/or client legal privilege – Objection upheld   
Legislation: Family Law Act 1975 (Cth)
Cases cited:

Barker v Campbell (1983) 153 CLR

Director of Public Prosecutions (NSW) v Stanizzo [2010] NSWCA 12

Goldy & Goldy and Ors (2011) FAMCA 477

Hamilton v New South Wales [2016] NSWSC 1213

R v Bell; Ex parte Lees (1980) 146 CLR 141

R v TAV [2022] QCA 271
Division: Division 1 First Instance
Number of paragraphs: 9
Date of last submission/s: 16 August 2024
Date of hearing: On the papers in chambers
Place: Brisbane
Solicitor for the Applicant: Damien Greer Lawyers
Counsel for the Respondent: Mr J Linklater-Steele
Solicitor for the Respondent: Mills Oakley Lawyers
Solicitor for the Independent Children's Lawyer: Julie Harrington Solicitor
Counsel for the Other: Mr G Cummings
Solicitor for the Other: Office of the Director of Public Prosecutions

ORDERS

BRC 11543 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR ANDREWSON

Applicant
AND:

MS TRUDEAU

Respondent

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Other

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

12 NOVEMBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER:

1.That the documents listed in the amended index marked as Annexure A to the written submissions filed on 16 August 2024, are subject to legal professional/client legal privilege and none of those documents nor copies of them should be produced to the parties.

2.That the additional documents produced to the Court on 16 August 2024, named Annexure B, shall be included in the sealed envelope pursuant to Order 1 hereof.

3.That the Director of Public Prosecutions shall be released from further compliance with the subpoena filed 20 February 2024.

4.That the Notice of Objection – Subpoena filed 2 July 2024 is otherwise dismissed.

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 the pseudonym Andrewson & Trudeau has been approved pursuant to…

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AGLC
Andrewson & Trudeau (No 2) [2024] FedCFamC1F 764
Case
[2024] FedCFamC1F 764
Decision Date

CaseChat Overview and Summary

The matter in Andrewson & Trudeau (No 2) involved a legal dispute within the family law jurisdiction. The Independent Children's Lawyer had issued a subpoena directed to the Director of Public Prosecutions, seeking the production of documents. The Director objected to the subpoena, asserting legal professional privilege and client legal privilege over the documents in question. The case was heard in the Federal Circuit and Family Court of Australia, Division 1.

The primary legal issue before the court was whether the documents sought by the subpoena should be produced, considering the objections based on privilege. The court had to assess the nature of the documents, their relevance to the proceedings, and the applicability of legal professional and client legal privilege. The Director argued that the documents were created in the course of criminal proceedings and remained confidential, thus protected by privilege. The Independent Children's Lawyer contended that the documents were necessary for the ongoing family law proceedings.

The court, in its decision, upheld the Director’s objection and ruled that the documents were subject to legal professional and client legal privilege. The reasoning was based on the authorities cited by the Director, particularly Barker v Campbell and R v Bell; Ex parte Lees, which support the assertion of privilege in similar circumstances. The court found that the documents were created in furtherance of criminal proceedings and were confidential, remaining so in the hands of the Director. The decision also referenced Goldy & Goldy and Ors, where a similar claim of privilege was upheld. The court further noted that the prosecution's obligations to assess evidence dispassionately reinforced the need for maintaining the confidentiality of these documents.

The final orders of the court mandated that the specified documents were not to be produced to any party and that the Director of Public Prosecutions was released from further compliance with the subpoena. Additionally, the court dismissed the notice of objection filed by the Director, except for the aspect concerning the subpoena. The court's decision was grounded in the preservation of the integrity of the criminal justice process and the protection of confidential communications between legal professionals and their clients.

Orders

Orders of the court

BRC 11543 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR ANDREWSON

Applicant

AND:

MS TRUDEAU

Respondent

OFFICE OF THE DIRECTOR OF PUBLIC PROSECUTIONS

Other

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BAUMANN J

DATE OF ORDER:

12 NOVEMBER 2024

THE COURT ORDERS UNTIL FURTHER ORDER:

1. That the documents listed in the amended index marked as Annexure A to the written submissions filed on 16 August 2024, are subject to legal professional/client legal privilege and none of those documents nor copies of them should be produced to the parties.

2. That the additional documents produced to the Court on 16 August 2024, named Annexure B, shall be included in the sealed envelope pursuant to Order 1 hereof.

3. That the Director of Public Prosecutions shall be released from further compliance with the subpoena filed 20 February 2024.

4. That the Notice of Objection – Subpoena filed 2 July 2024 is otherwise dismissed.

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I have decided to make the orders, sought by the Director, broadly for the reasons which were advanced in the written submissions of the ODPP, which I summarise as follows:(a)The father Mr Andrewson was indicted in mid-2023 on multiple criminal offences committed between 2016 and 2020 against his daughter, X, who was then under 16 years of age.(b)It was ultimately decided that the prosecution did not have reasonable prospects of success and the prosecution of the father was discontinued, on advice which was based on available evidence.(c)In reliance upon the authorities identified in the written submissions particularly: Barker v Campbell (1983) 153 CLR at [60]; R v Bell; Ex parte Lees (1980) 146 CLR 141; Hamilton v New South Wales [2016] NSWSC 1213; and Director of Public Prosecutions (NSW) v Stanizzo [2010] NSWCA 12; the ODPP says a claim of privilege can be asserted.(d)In Goldy & Goldy and Ors (2011) FAMCA 477, in circumstances similar to those in this case, the ODPP’s claim for privilege was upheld. (e)The ODPP, having previously provided a number of documents on 2 July 2024, in a sealed form, omitted to produce a number of memoranda relating to the reasonable prospects of success, and they are now in Annexure B.(f)At paragraph 32 of the submissions the ODPP says:In this case all of the documents for which privilege is claimed were created on a confidential basis in furtherance of criminal proceedings and remain confidential in the hands of the Director. This includes copies of letters sent. In each instance the letter was sent to a specific individual for prosecution related purposes and not the world large… (g)The obligations of the prosecution were summarised by Nettle and Edelman JJ in HT v R (2019) 269 CLR 403 at [428.59] and requires that criminal proceedings are initiated, prosecuted or terminated upon a dispassionate assessment of the evidence – the submission of the ODPP at paragraph 33 with which I agree.CONCLUSION In these proceedings, the mother continues to press for a finding that the father is an unacceptable risk and at a trial, all available evidence should be produced. Prosecution related views, opinions and advice may not be admissible (R v TAV [2022] QCA 271) at [43]). In the circumstances I uphold the claim of privilege.

Ratio Decidendi

Legal Principle Established

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