Choat and Grendel - [2018] FamCA 579

FAMILY COURT OF AUSTRALIA

CHOAT & GRENDEL

[2018] FamCA 579

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Objection to the inspection of material produced under subpoena – Where the mother asserts that certain material in her clinical psychologist records is confidential and attracts public interest immunity – Where the mother’s relationship with her psychologist does not attract public interest immunity – Where the mother asserts that certain material in her clinical psychologist’s records is not relevant to any issue to be determined in the parenting proceedings – Where that objection is upheld.

Family Law Act 1975 (Cth)
Criminal Procedure Act 1986 (NSW)

Benson & Hughes (1994) FLC 92-483
D v National Society for the Prevention of Cruelty to Children [1978] AC 171

Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49

Feinster & Feinster and Anor [2006] FamCA 232
Goldy & Goldy (No. 2) [2011] FamCA 418
Jermyn & Carling (2012) FMCAfam 814
Merrill & Burt [2015] FamCA 159
R v Young [1999] NSWCCA 166
Smith & Duke [2015] FamCA 990
Wenlack & Cimorelli [2013] FamCA 602

APPLICANT:

Mr Choat

RESPONDENT:

Ms Grendel

INDEPENDENT CHILDREN’S LAWYER:

Ms Rutkowska

FILE NUMBER:

SYC

2065

2010

DATE DELIVERED:

30 July 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Watts J

HEARING DATE:

5 July 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Litigant in person

SOLICITOR FOR THE RESPONDENT:

Litigant in person

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ark Law

Orders

The mother be permitted to redact from the notes produced by Ms B:
1.1.The first bullet point of the notes on 18 February 2014, the first and second bullet point of the notes on 25 August 2014 and the 21 October 2014 notes together with additional references at about point 5 of the page of notes on 25 August 2014; the first dot point of the notes on 20 January 2015 and the third dot point on the notes of 4 August 2015;
1.2.The counselling notes dated 6 June 2016, 4 July 2016, 25 August 2016, 29 August 2016 and 4 October 2016 be removed in their entirety and the last bullet point of the notes of 2 August 2016, the first and second bullet points of the notes of 5 September 2016, and third line of the notes of 28 November 2016;
1.3.Any reference in any document that identifies the mother’s place of residence or telephone number.
As soon as is practicable:
2.1.The mother attend the Exhibits Section of the Sydney Registry and photocopy those pages which are to contain redactions in accordance with order 1;
2.2.The mother is to redact words in accordance with order 1 and replace the relevant pages in the bundle with the redacted copies;
2.3.The original unredacted copies are to be placed in a sealed envelope;
2.4.The mother is to give written notice to the father and the Independent Children's Lawyer as soon as possible that the records with redacted copies are now ready for inspection.

Note: The form…

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 Choat and Grendel

Details

AGLC: Choat and Grendel [2018] FamCA 579
Case: [2018] FamCA 579
Decision Date: 30 July 2018

CaseChat Overview and Summary

In the matter of *Choat and Grendel*, heard before Watts J, the dispute concerned the redaction of certain documents, specifically notes and counselling records, produced by Ms B. The mother sought to redact specific portions of these documents, including particular bullet points and entire counselling sessions, as well as any identifying information such as her place of residence or telephone number.

The primary legal issue before the court was whether the mother should be permitted to redact the specified parts of the documents. This involved considering the nature of the information sought to be redacted and its relevance to the proceedings, balanced against principles of disclosure and the need for a fair hearing.

Watts J ordered that the mother be permitted to redact specific bullet points from various notes dated between February 2014 and November 2016, and to remove entire counselling notes from June to October 2016. Additionally, any reference to the mother's place of residence or telephone number was to be redacted. The court further directed the mother to attend the Sydney Registry to photocopy the relevant pages, make the redactions, and replace the original pages with the redacted copies. The original unredacted copies were to be placed in a sealed envelope, and written notice was to be given to the father and the Independent Children's Lawyer once the redacted records were ready for inspection.

Orders

Orders of the court

The mother be permitted to redact from the notes produced by Ms B:

1.1. The first bullet point of the notes on 18 February 2014, the first and second bullet point of the notes on 25 August 2014 and the 21 October 2014 notes together with additional references at about point 5 of the page of notes on 25 August 2014; the first dot point of the notes on 20 January 2015 and the third dot point on the notes of 4 August 2015;

1.2. The counselling notes dated 6 June 2016, 4 July 2016, 25 August 2016, 29 August 2016 and 4 October 2016 be removed in their entirety and the last bullet point of the notes of 2 August 2016, the first and second bullet points of the notes of 5 September 2016, and third line of the notes of 28 November 2016;

1.3. Any reference in any document that identifies the mother’s place of residence or telephone number.

As soon as is practicable:

2.1. The mother attend the Exhibits Section of the Sydney Registry and photocopy those pages which are to contain redactions in accordance with order 1;

2.2. The mother is to redact words in accordance with order 1 and replace the relevant pages in the bundle with the redacted copies;

2.3. The original unredacted copies are to be placed in a sealed envelope;

2.4. The mother is to give written notice to the father and the Independent Children's Lawyer as soon as possible that the records with redacted copies are now ready for inspection.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

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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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