Chrystie & Dellas

Case [2021] FamCA 628

FAMILY COURT OF AUSTRALIA

Chrystie & Dellas [2021] FamCA 628

File number(s): CAC 1320 of 2014
Judgment of: ALTOBELLI J
Date of judgment: 27 August 2021
Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a registrar’s decision to strike out subpoena – Where subpoenaed party objects to the subpoena – Discussion of public interest immunity principles – Where subpoena found to lack relevance – Application for review dismissed.   
Legislation:

Family Law Act 1975 (Cth) s 37A

Family Law Rules 2004 (Cth) rr 15.41, 18.08, 18.10

Cases cited:

Choat & Grendel [2018] FamCA 579

Crawford & Sisinis and Anor [2014] FamCA 912

R v Young (1999) 46 NSWLR 681

Smith & Duke (2015) 54 Fam LR 221

Tsocas & Rilak [2018] FamCA 981

Number of paragraphs: 24
Date of last submission/s: 16 June 2021
Date of hearing: Heard on the papers
Place: Sydney
Solicitor for the Applicant: Atw Family Law
Solicitor for the Respondent: Boadicea Legal Services
The Subpoenaed Party: In person
Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates

ORDERS

CAC 1320 of 2014
BETWEEN:

MR CHRYSTIE

Applicant
AND:

MS DELLAS

Respondent

MR B
Subpoenaed party

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

27 AUGUST 2021

THE COURT ORDERS THAT:

1.The Application in a Case filed by the father on 23 April 2021 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Chrystie & Dellas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

ALTOBELLI J:

INTRODUCTION

  1. These reasons for judgment explain the orders the Court has made in this matter.

    BACKGROUND

  2. The substantive proceedings relate to a child, X, who is 11 years old.  The proceedings relate to the parenting orders that are in his best interests.

  3. On 5 March 2021 the Independent Children’s Lawyer caused a subpoena to be issued to Mr B, a clinical psychologist who provides treatment to X (hereafter referred to as ‘the psychologist’).

  4. On 19 March 2021 the psychologist caused to be filed a Notice of Objection.  The reasons stated were as follows:

    I believe that producing my clinical case notes from sessions with my client X, given the kind of things X has stated in sessions and are reflected in my notes, seriously risk putting X in future situations with his father that are emotionally and psychologically unsafe for him. In addition, I believe that the material in my clinical case notes are of a nature such that they could severely adversely effect [sic] the ongoing relationship that X has to his father and…

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AGLC
Chrystie & Dellas [2021] FamCA 628
Case
[2021] FamCA 628
Decision Date

CaseChat Overview and Summary

In the matter of *Chrystie & Dellas*, Altobelli J of the Family Court of Australia considered an application by the father (Mr Chrystie) to review a registrar's decision to strike out a subpoena. The subpoena had been issued to Mr B, a clinical psychologist treating the child, X, in ongoing parenting proceedings. Mr B had objected to the subpoena, citing concerns about the psychological safety of X, the potential adverse impact on X's relationship with his father, and the risk of damaging the therapeutic relationship between X and himself.

The central legal issues before the court were whether the registrar erred in striking out the subpoena and, consequently, whether the psychologist's objections should be dismissed and the subpoena upheld. This involved an examination of the principles of public interest immunity and the relevance of the subpoenaed material to the substantive parenting proceedings.

Altobelli J reasoned that the registrar's decision to strike out the subpoena was appropriate. The court found that the subpoena lacked the necessary relevance to the parenting proceedings. The psychologist's stated concerns about the potential harm to the child and the integrity of the therapeutic relationship were given significant weight. The court applied the principle that subpoenas should not be used to obtain material that is irrelevant or that could cause undue harm, particularly in the context of child-related family law matters where the paramount consideration is the best interests of the child.

The application for review was dismissed. The court ordered that the father's application be dismissed, upholding the registrar's decision to strike out the subpoena issued to the psychologist.

Orders

Orders of the court

CAC 1320 of 2014

BETWEEN:

MR CHRYSTIE

Applicant

AND:

MS DELLAS

Respondent

MR B

Subpoenaed party

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

ALTOBELLI J

DATE OF ORDER:

27 AUGUST 2021

THE COURT ORDERS THAT:

1. The Application in a Case filed by the father on 23 April 2021 be dismissed.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

Background

Background to the litigation

These reasons for judgment explain the orders the Court has made in this matter.BACKGROUND The substantive proceedings relate to a child, X, who is 11 years old. The proceedings relate to the parenting orders that are in his best interests. On 5 March 2021 the Independent Children’s Lawyer caused a subpoena to be issued to Mr B, a clinical psychologist who provides treatment to X (hereafter referred to as ‘the psychologist’). On 19 March 2021 the psychologist caused to be filed a Notice of Objection. The reasons stated were as follows:I believe that producing my clinical case notes from sessions with my client X, given the kind of things X has stated in sessions and are reflected in my notes, seriously risk putting X in future situations with his father that are emotionally and psychologically unsafe for him. In addition, I believe that the material in my clinical case notes are of a nature such that they could severely adversely effect [sic] the ongoing relationship that X has to his father and ought to be protected, both for X and his father’s sake.I also belief [sic] that the therapeutic relationship that I have managed to build up with X over many years of working with him, which has only recently got to the point where X trusts me enough to engage fully with me and let me know all that is going on for him psychologically, could be threatened and derailed if X were to discover that what he has painstakingly let me know in confidence has been used for court purpose and exposed. I believe that X would no longer feel able to access his therapy and make use of it in the way that he needs to in order to avail himself of necessary ongoing help and support.My primary duty of care as a clinical psychologist is to my client, X, and I believe that producing my clinical notes would amount to me breaching this duty of care. On 31 March 2021 the matter came before Registrar Maitland. The orders made by the learned Registrar indicate that, firstly, the Independent Children’s Lawyer no longer pressed the subpoena; and secondly the Court asked the parties if they required reasons for the decision to strike out the subpoena and all the parties declined. The order further notes that the mother, father, Independent Children’s Lawyer, and the psychologist all appeared on this occasion. The learned Registrar ordered, in effect, that the subpoena to the psychologist be struck out. On 23 April 2021 the father (the Respondent in the substantive proceedings and the Applicant in the present application) filed an application for review of the learned Registrar’s order. The orders sought were as follows:1.That pursuant to Rule 18.08 of the Family Law Rules, the Orders of Registrar Maitland of 31 March 2021 be reviewed.2.That the Notice of Objection filed by Mr B on 19 March 2021 be dismissed.3.That Mr B produce the documents listed in Part E of the subpoena to Mr B filed 5 March 2021 to the Family Court within 14 days of the date of these Orders. On 2 June 2021 I made the following orders in chambers:1.By no later than 4pm on 9 June 2021, the subpoena objector file and serve any submissions on which he seeks to rely, with respect to the Application for Review of the decision of Registrar Maitland dated 31 March 2021, not exceeding 500 words in length.2.Within 7 days thereafter, the Applicant file and serve any submissions on which he seeks to rely, not exceeding 500 words in length. 3.Within 7 days thereafter, the Respondent file and serve any submissions on which she seeks to rely, not exceeding 500 words in length.4.Within 7 days thereafter, the Independent Children’s Lawyer file and serve any submissions on which they seek to rely, not exceeding 500 words in length.5.Thereafter, judgment be reserved and the matter be determined on the papers.

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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