Bergeron & Bergeron

Case [2023] FedCFamC1F 1031

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Bergeron & Bergeron [2023] FedCFamC1F 1031

File number: SYC 7747 of 2018
Judgment of: MCGUIRE J
Date of judgment: 7 December 2023
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – objection to subpoena – where father and Independent Children’s Lawyer have issued subpoenas to the children’s treating therapists and Child Protection Authorities – where the mother objects – where mother’s notice of objection to subpoenas be dismissed    
Legislation:

Family Law Act 1975 (Cth)

Federal Circuit and Family Court of Australia (Family Law Rules) 2021 rr, 5.01, 13.12(2)

Cases cited:

Clemett v Clemett (1981) FLC 91–013, [1980] FamCA 90

Crawford & Sisinis and Anor [2014] FamCA 912

Feinster & Feinster & Anor [2006] FamCA 232

Leroux & Leroux and Ors [2016] FamCA 255

Millar v Millar (1983) FLC 91–326

Sadasivam & Seshan (2019) FLC 93-899, [2019] FamCAFC 76
Division: Division 1 First Instance
Number of paragraphs: 39
Date of hearing: 30 November 2023
Place: Hobart, delivered Melbourne
Counsel for the Applicant: Mr Schonell
Solicitor for the Applicant: The Norton Law Group
Counsel for the Respondent: Ms Fiskin
Solicitor for the Respondent: Barkus Doolan Winning
Counsel for the Independent Children’s Lawyer: Mr Wilkins
Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates

ORDERS

SYC 7747 of 2018

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

MR BERGERON

Applicant
AND:

MS BERGERON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

7 DECEMBR 2023

THE COURT ORDERS THAT:

1.The objections to subpoena lodged by the mother, Ms Bergeron, on the 9 March 2023 and in respect of the following: Child Protection Service, CH Hospital, the JJ Centre, Region GG CYMHS, HH Psychology and Region CA Child Protection Service be dismissed, but where any material brought to court under any of the subpoena in respect of V be redacted or otherwise be not released and in this respect the Independent Children’s Lawyer is directed to view and inspect the documents prior to inspection by other parties or their legal representatives.

IT IS NOTED:

A.The mother’s objection to the subpoena issued and directed to Dr CG has been abandoned and as such documents at Court under that subpoena may be released.

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).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 of Bergeron & Bergeron has been…

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AGLC
Bergeron & Bergeron [2023] FedCFamC1F 1031
Case
[2023] FedCFamC1F 1031
Decision Date

CaseChat Overview and Summary

The case of Bergeron & Bergeron involved the Federal Circuit and Family Court of Australia, specifically Division 1. The matter concerned objections raised by the mother, Ms Bergeron, to subpoenas issued by the father and the Independent Children's Lawyer (ICL) to the children's treating therapists and Child Protection Authorities. The objections sought to dismiss the subpoenas, arguing that the children's therapy should remain confidential and not be disclosed. The father, supported by the ICL, argued for the objections to be dismissed and the documents to be released under the subpoena.

The legal issues before the court were centred on the confidentiality of the children's therapy and the scope of the subpoenas issued. The court had to determine whether the subpoenas were valid and if the objections to them were justified. The mother's argument was based on the previous orders made by Judge Morley in 2020, which stipulated that the therapy provided to the children was confidential and not reportable. The father and the ICL contended that the subpoenas were necessary to obtain relevant information for the court's consideration of the children's welfare and the parenting arrangements.

The court, in its reasoning, concluded that while the therapy sessions were intended to be confidential, the subpoenas were not inherently improper. The court found that the subpoenas were relevant to the parenting arrangements and the welfare of the children. The mother's objections were dismissed, but the court made a specific direction that any material brought to court under the subpoena regarding one of the children, V, should be redacted or otherwise withheld. The Independent Children's Lawyer was directed to view and inspect the documents before they were inspected by other parties or their legal representatives. This decision aimed to balance the need for confidentiality with the necessity of obtaining relevant information to make informed decisions in the children's best interests.

The final orders of the court were that the objections to the subpoenas lodged by the mother be dismissed, with the exception of the material regarding child V, which was to be redacted or withheld. The Independent Children's Lawyer was directed to inspect the documents before they were made available to other parties. This decision allowed for the necessary information to be obtained while protecting the confidentiality of the therapy sessions to the extent possible.

Orders

Orders of the court

SYC 7747 of 2018

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR BERGERON

Applicant

AND:

MS BERGERON

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

MCGUIRE J

DATE OF ORDER:

7 DECEMBR 2023

THE COURT ORDERS THAT:

1. The objections to subpoena lodged by the mother, Ms Bergeron, on the 9 March 2023 and in respect of the following: Child Protection Service, CH Hospital, the JJ Centre, Region GG CYMHS, HH Psychology and Region CA Child Protection Service be dismissed, but where any material brought to court under any of the subpoena in respect of V be redacted or otherwise be not released and in this respect the Independent Children’s Lawyer is directed to view and inspect the documents prior to inspection by other parties or their legal representatives.

Background

Background to the litigation

The father argues that the objections should be dismissed and the documents provided the under the subpoena be released. He is supported in this position by the ICL. BACKGROUND Proceedings were commenced by the father in 2018 in the Federal Circuit Court in respect of both property and parenting issues. There commenced then a lengthy and convoluted procedural and litigious history. On 23 January 2020 Judge Morley in the Federal Circuit Court (as it then was) only made orders inter alia as follows: 3.That the therapy to be provided to the children [W] and [X] pursuant to order 4 in the Minute of Interim Orders is confidential and is not reportable.4.Neither party may issue a subpoena to any therapist providing therapy to [W] and [X] nor to anybody for whom that therapist may work. The application proceeded to trial before his Honour over eight days between 24 August 2020 and 7 March 2021. Final orders were made by his Honour on 26 May 2022 being some 14 months after the completion of the evidence where property matters were concluded and his Honour made parenting orders inter alia providing for a change of primary residence for the children from the mother to the father with an order for sole parental responsibility for the children resting in the father and a moratorium on time between the children and the mother (excepting the youngest child) for a period of three months. Somewhat unusually, his Honour’s orders of 26 May 2022 also provided inter alia:…19.These orders are stayed until 11:30AM today 26 May 2022. 20.Leave is granted to the Mother to make a verbal application for a time-limited stay of the final orders made today.21.Orders 5 to 18 of these orders are stayed until 4.00PM on 24 June 2022 on terms and conditions.22.It is a condition of the stay granted today that the children [Y] born […] 2014 and [Z] born […] 2017 spend time with their Father each Saturday, unsupervised, from 9.00AM until 5.00PM. 23.It is a condition of the stay granted today that the children [W] born […] 2010 and [X] born […] 2013 spend time with their Father in company with their younger sisters [Y] and [Z] on the occasions provided in these orders on occasions where they express any wish to spend that time with their Father.…28.The proceedings are listed for interlocutory hearing as to a stay of the final orders made today at 9:30AM on 20 June 2022.29.It is a condition of the stay granted today that the Mother file and serve a Notice of Appeal by no later than 4.00PM on 17 June 2022.30.It is a condition of the stay granted today that the Mother file and serve a formal application for a stay by no later than 4.00PM on 9 June 2022.(Original emphasis) Following some amendments to the above procedural orders on 1 June 2022, a formal stay order was granted on 20 June 2022 pending the hearing of the Appeal. Relevantly, to the above the chronology and his Honour’s orders, it is uncontroversial that for a considerable time prior to his Honour handing down Judgment on 26 May 2022 the children’s time with the father had been limited to supervised time.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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