Corey & Jebbett (No. 4) - [2018] FamCA 1039

FAMILY COURT OF AUSTRALIA

COREY & JEBBETT (NO. 4)

[2018] FamCA 1039

FAMILY LAW – CHILDREN – Objection to subpoena – Public interest immunity – where the single expert psychologist objected to the production of test results sought by way of subpoena – where the mother sought to test the accuracy of the content of the expert report – consideration of public interest immunity – where a litigant seeking to test the conclusions or opinions of an expert must have a reasonable opportunity to test the validity or correctness of the underlying facts or data upon which the relevant opinion is based – where a court will not compel the production of documents the publication of which would be injurious to the public interest – where provided suitable restrictions are placed upon the release of the material, a proper balance can be achieved between the public interest and the mother’s right to test the opinions – orders made for inspection in Court.

Family Law Rules 2004 (Cth) r 15.31

Bell v FS & U Industrial Benefit Society Ltd (Unreported, Supreme Court of New South Wales, McLelland J, 9 September 1987)
Goldy & Goldy (No 2) [2011] FamCA 418
Griffin v South Australia (1925) 36 CLR 378; [1925] HCA 39
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Smith v Duke (2015) 54 Fam LR 221; [2015] FamCA 990
Zawada &Welchman-Rubie [2012] FamCA 1059

APPLICANT:

Mr Corey

RESPONDENT:

Ms Jebbett

INDEPENDENT CHILDREN’S LAWYER:

Anthony Kingston, Norman & Kingston Solicitors

FILE NUMBER:

BRC

9223

2017

DATE DELIVERED:

6 December 2018

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

5 December 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Dart

SOLICITOR FOR THE APPLICANT:

Landmark Lawyers

THE RESPONDENT:

In person

COUNSEL FOR THE

INDEPENDENT CHILDREN’S LAWYER:

Ms Pendergast

INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston, Norman & Kingston Solicitors

Orders

The documents produced under subpoena by Ms J, Clinical Psychologist, to which Ms J objects to being produced, are to be admitted as a separate exhibit in a sealed envelope marked “not to be opened without an order of a Judge”.
No party is permitted to copy these documents.
The Mother may have access in terms of inspection of the documents whilst she is in Court today for the purpose of undertaking any questioning she has of Ms J.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Corey & Jebbett (No. 4) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY…

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 Corey & Jebbett (No. 4)

Details

AGLC: Corey & Jebbett (No. 4) [2018] FamCA 1039
Case: [2018] FamCA 1039
Decision Date: 6 December 2018

CaseChat Overview and Summary

In the matter of *Corey & Jebbett (No. 4)*, Kent J of the Family Court of Australia considered a dispute concerning the production of documents subpoenaed from Ms J, a clinical psychologist. The central issue revolved around Ms J's objections to producing certain documents, which were then brought before the Court for determination.

The primary legal issue before Kent J was whether the documents, to which Ms J objected, should be admitted into evidence. This required the Court to balance the need for relevant evidence in family law proceedings against the protection of a psychologist's professional privilege and the privacy of the individuals involved.

Kent J ordered that the documents be admitted as a separate exhibit, to be kept in a sealed envelope and not opened without a further court order. Crucially, no party was permitted to copy these documents. However, the Mother was granted access for inspection while she was present in court, specifically for the purpose of questioning Ms J. This approach aimed to allow for the potential use of the documents in the proceedings while imposing strict limitations on their dissemination and access.

Orders

Orders of the court

The documents produced under subpoena by Ms J, Clinical Psychologist, to which Ms J objects to being produced, are to be admitted as a separate exhibit in a sealed envelope marked “not to be opened without an order of a Judge”.

No party is permitted to copy these documents.

The Mother may have access in terms of inspection of the documents whilst she is in Court today for the purpose of undertaking any questioning she has of Ms J.

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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