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Cadriel & Gabbey

Cadriel & Gabbey

Case [2021] FedCFamC1F 316 17 December 2021

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cadriel & Gabbey [2021] FedCFamC1F 316

File number(s): ADC 4072 of 2019

Judgment of: BERMAN J

Date of judgment: 17 December 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of Decision – Subpoenas – Where the mother sought notes in relation to her counselling at L Family Services via subpoena – Where L Family Services objects to the inspection and copying of the documents – Consideration of whether the counselling was family counselling – Discussion of the relevance of documents produced under subpoena – Where L Family Services allowed the mother to inspect and transcribe a copy of the documents – Where L Family Services’s actions are an exercise of discretion of the family counsellor – Where leave is given for the inspection and copying of the documents.

Legislation:
Family Law Act 1975 (Cth) ss 10B, 10C, 10D, 10E

Family Law Rules 2004 (Cth) Pt 15.3

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6

Cases cited:
Hatton v Attorney-General of the Commonwealth of Australia (2000) FLC 93-038

Dupont & Chief Commissioner of Police (2015) FLC 93-648

Lucas Industries Ltd v Hewitt (1978) 18 ALR 555

Martin & Martin (No.2) [2014] FamCA 232

National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372

Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683

Smirnov v Turova [2009] FMCAfam 1083

Woley & Humboldt (No. 4) [2009] FamCA 546

X Pty Ltd & Merhi [2015] FamCA 622

Division: Division 1 First Instance

Number of paragraphs: 48

Date of hearing: 29 November 2021

Place: Adelaide

Counsel for the Applicant: The Applicant appeared in person

Counsel for the Respondent: Mr Starke

Solicitor for the Respondent: Starke Lawyers

Counsel for the Subpoenaed Party: Mr Sharp

Solicitor for the Subpoenaed Party: Culshaw Miller

Counsel for the Independent Children’s Lawyer: Ms Olsson

Solicitor for the Independent Children’s Lawyer: Silkwoods
ORDERS

ADC 4072 of 2019

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS GABBEY

Applicant

AND:
MR CADRIEL

Respondent

AND: INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

17 DECEMBER 2021

THE COURT ORDERS THAT:
1.The mother have leave to inspect and photocopy all documents produced by Ms M, Manager, L Family Services pursuant to subpoena issued on 14 May 2020.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cadriel & Gabbey

Details

AGLC: Cadriel & Gabbey [2021] FedCFamC1F 316
Case: [2021] FedCFamC1F 316
Decision Date

CaseChat Overview and Summary

In Cadriel & Gabbey, the mother sought to review a decision by the Senior Judicial Registrar to set aside a subpoena she had issued. The matter involves allegations of sexual assault and family violence by the father against the mother and child, X. The mother sought access to counselling records held by L Family Services to demonstrate that she had disclosed her concerns to a counsellor, thus aiming to show the counsellor was not conducting family counselling as required by the Family Law Act 1975. The primary legal issue was whether the mother should be allowed to copy the counselling records held by L Family Services, given the confidentiality provisions in the Act.

The court considered the nature of the counselling records and the mother’s access to them. It found that the mother had already inspected the records in detail and at length, which rendered any objection to copying them nonsensical. The court concluded that the mother should be permitted to copy the notes as there was no sensible objection given her extensive inspection of the records. The court’s reasoning was that the mother’s ability to inspect the notes in detail negated any valid reason for L Family Services to object to copying them.

The court granted leave to the mother to inspect and copy the documents produced in answer to her subpoena directed to Ms M, Manager, L Family Services. The orders reflect this decision, allowing the mother to proceed with copying the notes.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

On 1 April 2021, the Senior Judicial Registrar upheld the objection and ordered that the subpoena issued be set aside. The mother seeks to review the decision of the Senior Judicial Registrar by her Application for Review filed 8 April 2021.BACKGROUND The father was born in Country G and the mother was born in Australia. The parties met online in March 2015. In July 2015, the mother travelled to Country G and the parties met in person for the first time. The mother returned for a further occasion between October and December 2015. The parties married in Country G in 2015. The mother returned to Australia in December 2015 and arrangements were made for the father to apply for a visa. He came to Australia on a tourist visa in April 2018 and eventually was granted a residency visa which enabled him to return to Australia on 22 December 2018. The parties separated in March 2019 with the father vacating the mother’s residence in April 2019. The mother alleges that she was the victim of sexual assault by the father and that the relationship albeit of short duration, involved ongoing family violence. The mother also alleged that the father had sexually abused X. There has been significant involvement by the South Australian Police (“SAPOL”) in respect of the mother’s allegations, however, it appears that no charges were laid and there is no ongoing investigation. On 19 June 2020, Judge Kari, as she then was, made orders that provided for the children to live with the mother and that they would spend supervised time with the father each Saturday from 10.00 am until 12 noon and when able to do so the father would spend supervised time with the children at a Children’s Contact Service.LEGAL PRINCIPLES The mother acknowledges that she attended at L Family Services between 2016 and 2018 in order to access counselling services. The mother submits that the L Family Services counselling records have forensic purpose in that she considers the documents would demonstrate that during the counselling sessions she disclosed to the counsellor her concerns in respect of the father’s conduct, that he perpetrated family violence and that she was the victim of sexual assault by him. The objection by L Family Services seems to be based upon the confidentiality of communications in family counselling as set out in s 10D of the Family Law Act 1975 (Cth) (“the Act”) although the submission is confused by the basis for the objection being reliance upon s 10E of the Act. It is conceded that the counsellor is a person accredited as a family counsellor and is authorised to act on behalf of a designated organisation. The gravamen of the mother’s objection is that the counsellor was not conducting “family counselling” as required by s 10D(1) of the Act and therefore L Family Services are not bound by the prohibition in s 10D(1). For reasons that will be explained, it is curious that L Family Services did not consider utilising the provision of s 10D(3) of the Act, namely:(3)A family counsellor may disclose a communication if consent to the disclosure is given by: (a)if the person who made the communication is 18 or over – that person; or…

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

BERMAN J

All that remains is to determine whether the mother should be permitted to copy the notes. The notes represent information given by the mother. In circumstances where she has been able to inspect the notes in detail and at length, there can be no sensible objection to allowing the mother to copy them.CONCLUSION I propose leave be given to the mother to inspect and copy documents produced in answer to the mother’s subpoena directed to Ms M, Manager, L Family Services. I make orders as appear at the commencement of these reasons.

Ratio Decidendi

Legal Principle Established

Established by: BERMAN J

Full text does not contain this section.

Citations

AGLC Citation

Cadriel & Gabbey [2021] FedCFamC1F 316

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Cases cited in this decision · 12 of 12 shown

X Pty Ltd and Ors & Merhi
[2015] FamCA 622 Para 37

…The decision of X Pty Ltd & Merhi [2015] FamCA 622 concerned an application seeking review of orders made by the Registrar, dismissing objections to subpoenas issued by the Court. The applicants were twelve companies that had been served with subpoenas (companies of which the husband had an interest in). McClelland…
Martin & Martin and Anor (No. 2)
[2014] FamCA 232 Para 41

…In Martin & Martin (No.2) [2014] FamCA 232 (“ Martin ”) Cronin J found that the focus of the Court should be whether it was “on the cards”[3] that the documents would materially assist the proceedings. At [28], Cronin J referred to his own comments in Woley & Humboldt (No. 4) [2009] FamCA 546, where he said: [3] Ma…
Smirnov & Turova
[2009] FMCAfam 1083 Para 19

…communication given in the context of “family counselling”. The mother refers to the decision of Walters FM, as he then was, in Smirnov v Turova [2009] FMCAfam 1083 (“ Smirnov ”).…
Woley & Humboldt (No 3)
[2009] FamCA 546 Para 41

…ds”[3] that the documents would materially assist the proceedings. At [28], Cronin J referred to his own comments in Woley & Humboldt (No. 4) [2009] FamCA 546, where he said: [3] Martin & Martin (No.2) [2014] FamCA 232 at [28]. 39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full C…
Papadopoulos & Papadopoulos (No. 2)
[2007] FamCA 1683 Para 42

…In Martin at [29], Cronin J also referred to his decision in Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683 where he observed: 49.The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determ…
Portal Software v Bodsworth
[2005] NSWSC 1115 Para 41

…a document “could possibly throw light on the issues in the main case”. 42.In Portal Software International Pty Ltd v Bodsworth , [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said: Thus it is plainly not the question at this (first) stage whether the documents, producti…
Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd
[2002] FCA 832 Para 41

…FamCA 546, where he said: [3] Martin & Martin (No.2) [2014] FamCA 232 at [28]. 39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on su…
Hatton v Attorney-General of Commonwealth of Australia & Ors
[2000] FamCA 892 Para 36

…The primary test is the relevance of the documents to the issues before the Court. The Full Court in Hatton v Attorney-General of the Commonwealth of Australia (2000) FLC 93-038 (“ Hatton ”) considered the test of relevance and set out examples of where a court may determine where it is proper to set aside a subpoena: ·If the subpoena is for an improper purpose,…
Trade Practices Commission v Arnotts Ltd
[1989] FCA 645 Para 41

…In Martin & Martin (No.2) [2014] FamCA 232 (“ Martin ”) Cronin J found that the focus of the Court should be whether it was “on the cards”[3] that the documents would materially assist the proceedings. At [28], Cronin J referred to his own comments in Woley & Humboldt (No. 4) [2009] FamCA 546, where…
Trade Practices Commission v Arnotts Limited
[1989] FCA 883 Para 41

…g “a sufficient apparent connection to justify their production or inspection”. 41.In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306, Beaumont J saw relevance as something where a document “could possibly throw light on the issues in the main case”. 42.In Portal Software International Pty Ltd v Bo…
[1978] AC 547
[1978] AC 547 Para 34

…The general practice as it relates to subpoenas to produce documents is explained by Smithers J in Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 570: The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that st…
Lucas Industries Ltd v Hewitt
10 Ch App 194 Para 34

…The general practice as it relates to subpoenas to produce documents is explained by Smithers J in Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 570: The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have do…

Legislation cited in this decision · 2

Family Law Act 1975 (Cth)
10B, 10C, 10D, 10E 5 mentions (from Para 4)
Family Law Rules 2004 (Cth)
6.38 2 mentions (from Para 35)

File number(s):	ADC 4072 of 2019
Judgment of:	BERMAN J
Date of judgment:	17 December 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of Decision – Subpoenas – Where the mother sought notes in relation to her counselling at L Family Services via subpoena – Where L Family Services objects to the inspection and copying of the documents – Consideration of whether the counselling was family counselling – Discussion of the relevance of documents produced under subpoena – Where L Family Services allowed the mother to inspect and transcribe a copy of the documents – Where L Family Services’s actions are an exercise of discretion of the family counsellor – Where leave is given for the inspection and copying of the documents.
Legislation:	Family Law Act 1975 (Cth) ss 10B, 10C, 10D, 10E Family Law Rules 2004 (Cth) Pt 15.3 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6
Cases cited:	Hatton v Attorney-General of the Commonwealth of Australia (2000) FLC 93-038 Dupont & Chief Commissioner of Police (2015) FLC 93-648 Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 Martin & Martin (No.2) [2014] FamCA 232 National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372 Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683 Smirnov v Turova [2009] FMCAfam 1083 Woley & Humboldt (No. 4) [2009] FamCA 546 X Pty Ltd & Merhi [2015] FamCA 622
Division:	Division 1 First Instance
Number of paragraphs:	48
Date of hearing:	29 November 2021
Place:	Adelaide
Counsel for the Applicant:	The Applicant appeared in person
Counsel for the Respondent:	Mr Starke
Solicitor for the Respondent:	Starke Lawyers
Counsel for the Subpoenaed Party:	Mr Sharp
Solicitor for the Subpoenaed Party:	Culshaw Miller
Counsel for the Independent Children’s Lawyer:	Ms Olsson
Solicitor for the Independent Children’s Lawyer:	Silkwoods

ADC 4072 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS GABBEY Applicant
AND:	MR CADRIEL Respondent
AND:	INDEPENDENT CHILDREN’S LAWYER

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	17 DECEMBER 2021