FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Arora & Dash (No 3) [2024] FedCFamC2F 680
File number(s): MLC 12416 of 2022 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 May 2024 Catchwords: FAMILY LAW – Subpoena objections – Where Husband seeks subpoena material regarding notes from Wife’s counselling and entire phone records spanning several years – Wife objects on basis of relevance, invasion of privacy, and fishing exercise – Apparent relevance test applies – Orders for redaction of subpoena material Legislation: Family Law Act 1975 (Cth) Cases cited: Hall & Hall and Anor (objection to subpoena) [2014] FamCA 407
Papadopoulos & Papdopoulos (No 2) [2007] FamCA 1683
Sadek and Ors & Hall and Anor [2015] FamCAFC 23
Division: Division 2 Family Law Number of paragraphs: 12 Date of hearing: 20 May 2024 Place: Melbourne Counsel for the Applicant: Mr Devries Solicitor for the Applicant: MMH Lawyers Counsel for the Respondent: Mr Moisidis Solicitor for the Respondent: Cinque Oakley Bryant Lawyers ORDERS
MLC 12416 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR ARORA
Applicant
AND: MS DASH
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1.The subpoena to B Company issued by the Applicant filed on 22 March 2024 be set aside.
2.The subpoena to C Company issued by the Applicant and filed on 22 March 2024 be amended as follows:
(a)the words in paragraph 2 being ‘resume’ and ‘reference checks’ be deleted;
(b)paragraph 4 be amended to make reference to only:
(i)the dates of counselling undertaken;
(ii)the identity of the counselling service; and
(iii)the location of counselling undertaken by the Respondent under the C Company Employee Assistance Program.
3.The Respondent’s solicitors be given leave to examine the documents released pursuant to the C Company subpoena and redact from a photocopy any records relating to the counselling undertaken by the Respondent, save for;
(a)the dates
(b)identification of service providers; and
(c)places of such counselling sessions.
with original unredacted documents to be place in a sealed envelope until further order.
4.That within 7 days of the dare of these orders, the Respondent provide the Applicant
(a)the names and contact details of all medical health professionals and allied health practitioners which she has consulted in her own right and with respect to the child of the marriage X born in 2017 as and from mid-2022.
5.That the parties do all acts and things required to authorise such of X’s medical practitioners and allied treating health professionals to communicate with each parent as to all aspects of X’s attendance and treatment.
6.Until further order, any subpoena documents to be released to the parties are to be released to the lawyers only, not to the parties, upon the usual undertakings.
AND THE COURT NOTES THAT:
A.Counsel for the Respondent has indicated to the Court that the Respondent will, in time, make an application to vacate the trial date.
B.It is the intention of these orders that any details of any…
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- [2024] FedCFamC2F 680
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CaseChat Overview and Summary
The court held that the subpoenas needed to be amended to ensure they met the apparent relevance test, which required the information to be directly relevant to the proceedings. It was determined that the subpoenas were overly broad and did not sufficiently demonstrate relevance. The court ordered that certain parts of the subpoenas be redacted to protect Ms. Dash's privacy. Specifically, the court mandated that only the dates, identity of service providers, and locations of counselling sessions be disclosed, while other details were to be redacted and kept sealed until further order. Furthermore, the court directed that the parties' legal representatives, rather than the parties themselves, should initially receive any subpoenaed documents.
The final orders of the court included setting aside certain parts of the subpoenas, amending others to focus on specific counselling details, and placing restrictions on the disclosure of sensitive information. Additionally, the court mandated that Ms. Dash provide the names and contact details of health professionals she had consulted since mid-2022 and instructed both parties to facilitate communication between X's health practitioners and both parents. The court also noted that Ms. Dash might apply to vacate the trial date and reiterated the importance of maintaining the confidentiality of counselling details.
Orders
Orders of the court
MLC 12416 of 2022
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR ARORA
Applicant
AND:
MS DASH
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
20 MAY 2024
THE COURT ORDERS THAT:
1. The subpoena to B Company issued by the Applicant filed on 22 March 2024 be set aside.
2. The subpoena to C Company issued by the Applicant and filed on 22 March 2024 be amended as follows:
(a) the words in paragraph 2 being ‘resume’ and ‘reference checks’ be deleted;
(b) paragraph 4 be amended to make reference to only:
(i) the dates of counselling undertaken;
(ii) the identity of the counselling service; and
(iii) the location of counselling undertaken by the Respondent under the C Company Employee Assistance Program.
3. The Respondent’s solicitors be given leave to examine the documents released pursuant to the C Company subpoena and redact from a photocopy any records relating to the counselling undertaken by the Respondent, save for;
(a) the dates
(b) identification of service providers; and
(c) places of such counselling sessions.
with original unredacted documents to be place in a sealed envelope until further order.
4. That within 7 days of the dare of these orders, the Respondent provide the Applicant
(a) the names and contact details of all medical health professionals and allied health practitioners which she has consulted in her own right and with respect to the child of the marriage X born in 2017 as and from mid-2022.
5. That the parties do all acts and things required to authorise such of X’s medical practitioners and allied treating health professionals to communicate with each parent as to all aspects of X’s attendance and treatment.
6. Until further order, any subpoena documents to be released to the parties are to be released to the lawyers only, not to the parties, upon the usual undertakings.
AND THE COURT NOTES THAT:
A. Counsel for the Respondent has indicated to the Court that the Respondent will, in time, make an application to vacate the trial date.
B. It is the intention of these orders that any details of any counsellors, including any note or observations, undertaken by the Respondent NOT be provided to the applicant.
C. Pursuant to ss.65DA(2) and 62B of the Family Law Act 1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Annexure A and these particulars are included in these orders.
D. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
E. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
F. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
G. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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.
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