Benson & Jeffreys (No 2)

Case [2025] FedCFamC1F 537

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Benson & Jeffreys (No 2) [2025] FedCFamC1F 537

File number(s): MLC 15240 of 2023
Judgment of: BENNETT J
Date of judgment: 13 August 2025
Catchwords:  FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – protected confidence – where subpoena objected to on the basis of protected confidence – consideration of children’s best interests – mandatory consideration of other specified matters - whether harm outweighs desirability of production – application objecting to subpoena dismissed.
Legislation:  Family Law Act 1975 (Cth) ss102BA, 102BB, 102BC, 102BD, 102BE
Division: Division 1 First Instance
Number of paragraphs: 41
Date of hearing: 23 July 2025
Place: Melbourne (via MS Teams)
Solicitor for the Applicant: Bramham Lawyers (Ms Goodrich)
Counsel for the Respondent: Mr Howe
Solicitor for the Respondent: Mayek Legal
Solicitor for the Independent Children's Lawyer: Southern Family Law (Ms Toth)

ORDERS

MLC 15240 of 2023

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

 MS BENSON

Applicant
AND:

MR JEFFREYS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

23 JULY 2025

THE COURT ORDERS THAT:

1.The Notice of Objection filed on behalf of by Ms N of M Psychology on 17 July 2025 be and is hereby dismissed, as is the application for the documents to be considered protected confidences pursuant to s102BA for the purpose of not permitting inspection.

2.Subject to paragraph 3 of this Order, the documents in issue that were produced to the Court on 1 July 2025 by Ms N of M Psychology pursuant to the subpoena issued by the Independent Children’s Lawyer be released for inspection to the practitioners for the father.

3.Pursuant to subsection 102BD(1) the father be restrained from inspecting, other than in the presence of a legal practitioner retained in these proceedings, those documents produced to the Court by Ms N of M Psychology in response to the subpoena issued by the Independent Children’s Lawyer on 17 June 2025 which are in addition to the documents already produced to the Court by Ms N in response to the earlier subpoena issued by the Independent Children’s Lawyer on 7 May 2024 and previously released to the father.

4.The father be restrained from taking any copies of the material produced to the Court by Ms N of M Psychology in response to the subpoena issued by the Independent Children’s Lawyer on 17 June 2025.

5.I reserve my reasons for decision.

AND THE COURT NOTES THAT:

A.If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B.Affected unrepresented parties may apply 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.

C.Further information about the legislation and the Scheme can be…

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AGLC
Benson & Jeffreys (No 2) [2025] FedCFamC1F 537
Case
[2025] FedCFamC1F 537
Decision Date

CaseChat Overview and Summary

In the case of Benson & Jeffreys, the Federal Circuit and Family Court of Australia dealt with an application by the father to inspect documents produced by the mother's psychologist, Ms N. The mother objected to the release of these documents on the basis of protected confidences under the Family Law Act 1975 (Cth). The primary concern was the potential harm to the children if the documents were disclosed, juxtaposed against the necessity of scrutinising both parents' cases to determine the children's best interests.

The court had to decide whether the harm that might result from disclosing the documents outweighed the benefits of allowing the father to inspect them. The court considered the paramount importance of the children's best interests, which included a thorough examination of both parents' cases. The court also noted the mother's mental health and capacity for insight as critical issues for the final hearing. Given the lack of evidence presented on the potential harm, the court found that the necessity for the father to inspect the documents outweighed the potential harm, leading to the dismissal of the application.

The court ultimately ruled that the documents could be released for inspection by the father's legal practitioners but prohibited the father from personally viewing the documents without his lawyer present and from taking any copies. This decision was made to balance the need for comprehensive scrutiny of the parents' cases with the protection of sensitive information that might cause harm.

In conclusion, the court dismissed the application for the documents to be considered protected confidences and ordered the release of the documents for inspection under strict conditions. The father was restrained from personally viewing the documents and from taking copies, ensuring that the sensitive information would be handled appropriately while still allowing for a thorough examination of the case.

Orders

Orders of the court

MLC 15240 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS BENSON

Applicant

AND:

MR JEFFREYS

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BENNETT J

DATE OF ORDER:

23 JULY 2025

THE COURT ORDERS THAT:

1. The Notice of Objection filed on behalf of by Ms N of M Psychology on 17 July 2025 be and is hereby dismissed, as is the application for the documents to be considered protected confidences pursuant to s102BA for the purpose of not permitting inspection.

2. Subject to paragraph 3 of this Order, the documents in issue that were produced to the Court on 1 July 2025 by Ms N of M Psychology pursuant to the subpoena issued by the Independent Children’s Lawyer be released for inspection to the practitioners for the father.

3. Pursuant to subsection 102BD(1) the father be restrained from inspecting, other than in the presence of a legal practitioner retained in these proceedings, those documents produced to the Court by Ms N of M Psychology in response to the subpoena issued by the Independent Children’s Lawyer on 17 June 2025 which are in addition to the documents already produced to the Court by Ms N in response to the earlier subpoena issued by the Independent Children’s Lawyer on 7 May 2024 and previously released to the father.

4. The father be restrained from taking any copies of the material produced to the Court by Ms N of M Psychology in response to the subpoena issued by the Independent Children’s Lawyer on 17 June 2025.

5. I reserve my reasons for decision.

AND THE COURT NOTES THAT:

A. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

B. Affected unrepresented parties may apply 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.

C. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

D. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

E. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by 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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In terms of s 102BE((4)(f) and (g), the mother is represented today. She does not oppose a direction which releases all documents produced by Ms N being inspected by the father providing he is accompanied by his lawyer in these proceedings. The other parties do not oppose a direction in those terms.CONCLUSION The material will be released to the practitioners for the father on the condition the father not personally view the material without a legal practitioner present, and he is not provided with any copies of the documents produced on subpoena by Ms N. I come to this conclusion having regard to the interest of the children as the paramount consideration. This family has been through an extraordinary amount of litigation. It must cease with the upcoming hearing. For this reason, it is in the best interests of the children that the case of each parent be thoroughly scrutinised. On the facts of this case, that scrutiny includes an examination of the notes of the mother’s psychologist. The concept of harm has simply not been articulated before me today in such a way that it outweighs the importance which may ultimately attach to testing each parent’s case by reference to the documents in question.

Ratio Decidendi

Legal Principle Established

I note that there are allegations that the mother poses a risk to the children. In her unpublished reasons as to interim care and parenting arrangements, Senior Judicial Registrar Conlan recorded the following:[93] On the untested evidence available to me and particularly the independent expert evidence, I am satisfied that the Mother currently presents an unacceptable risk to the children’s safety and wellbeing. I am satisfied that an immediate intervention is required to “interrupt this chronic cycle of conflict with a view to affording the girls access to a stable, nurturing environment that will promote their development and wellbeing”. I am also satisfied that the children will be at risk of resisting the support of their Father permanently if they remain for any longer in their Mother’s sole care. [94] Until such a time as the Mother can demonstrate her willingness and capacity to engage with the expert recommendations in these proceedings in a manner that priorities the best interests of the children, above her wish to be rid of the Father, I am not satisfied the Mother is a position to safely nurture the children. Best interests of child is paramount consideration Section 102BE(3) specifies that in parenting proceedings the best interests of the child form the paramount consideration. It is contended by both parents that co-parenting is not an available option for this family. The mother’s mental health and capacity for insight with respect to parenting will be key issues for determination at final hearing. There are no other proposed witnesses who could provide similar evidence from a therapeutic perspective. Harm caused by release or inspection There was no evidence provided by Ms N or the mother on the likelihood of harm or the nature and extent of harm which would or might be caused to the mother or the children by the documents produced by Ms N being released to and inspected by or on behalf of the father. The Court’s power to make a direction under s102BC is conditioned upon the Court being satisfied that releasing Ms N’s documents for inspection to the father would disclose a protected confidence. However, when I asked Ms N to direct me to a document produced by her which would or might be directly or indirectly harmful to the mother or the child, she responded that she is bound by the MARAM framework which dictates that clinical notes are not to be released to a perpetrator of domestic violence. Ms N submitted that the entirety of her notes are sensitive and confidential in those circumstances. The wording of the legislation goes to the “likely effect” and “likelihood of harm” following disclosure to the protected confider (the mother) and to any children in the proceedings. I note this is a higher standard than mere possibility of harm. The children currently live with the father but there is no suggestion that the release of the notes to the father’s solicitor poses any risk of harm to the children. The allegations that the father has perpetrated family violence on the mother and/or children are at this stage untested.