Crawford & Sisinis and Anor - [2014] FamCA 912

FAMILY COURT OF AUSTRALIA

CRAWFORD & SISINIS AND ANOR

[2014] FamCA 912

FAMILY LAW – SUBPOENA – Objection – public interest immunity – where child’s psychologist objects to the production of notes – where parents had previously signed a confidentiality agreement which provided information obtained in the therapeutic context would be “not discoverable” in future Family Court proceedings – consideration of public interest immunity – no public interest immunity between a child and a psychologist – orders made for inspection.

Family Law Act 1975 (Cth) ss 10C, 10G, 10D, 10E, 60CA, 69ZN
Evidence Act 1995 (Cth) ss 131, 135, 136
Evidence Act 1929 (SA) ss 67D, 67E

Benson & Hughes (1994) FLC 92-483
Cooper & Cooper (2012) 38 Fam LR 425
D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589
Feinster & Feinster and Anor [2006] FamCA 232
Goldy & Goldy(No 2) [2011] FamCA 418
Hatton v Attorney-General of the Commonwealth of Australia (2000) FLC 93-038
Hutchings & Clarke (1993) FLC 92-373
In the Marriage of Lace (1981) 7 Fam LR 631
Jermyn & Carling [2012] FMCAfam 184

National Employers Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372
R v Young (1999) 46 NSWLR 681
Sankey & Whitlam (1978) 142 CLR 1
Unitingcare-Unifam Counselling & Mediation & Harkiss and Anor (2011) 46 Fam LR 12
Zarrow v Australian Securities Commission (1992) 34 FCR 427

APPLICANT:

Ms Crawford

RESPONDENT:

Mr Sisinis

INTERVENOR:

Ms Dolan

INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

FILE NUMBER:

ADC

1255

2012

DATE DELIVERED:

27 October 2014

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Berman J

HEARING DATE:

21 October 2014

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Pyke QC

SOLICITOR FOR THE APPLICANT:

Adelaide Family Law

COUNSEL FOR THE RESPONDENT:

Ms Basheer

SOLICITOR FOR THE RESPONDENT:

Katrina Lind Legal

COUNSEL FOR THE OTHER PARTY:

Ms Dickson

SOLICITOR FOR THE OTHER PARTY:

Franklin Legal

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs West

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of SA

Orders

The legal representatives for the parties including the Independent Children’s Lawyer be at liberty to inspect documents (including those marked confidential) produced by Ms Dolan of Practice B pursuant to subpoena issued on 29 August 2014.
The parties and their legal representatives be restrained and an injunction is hereby granted restraining them from discussing the contents of the documents produced pursuant to the said subpoena with any other person not directly related to the proceedings.

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

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 1255 of 2012

Ms Crawford

Applicant

And

Mr Sisinis

Respondent

REASONS FOR JUDGMENT

INTRODUCTION

On 29 September 2014 orders were made that adjourned the trial to 27 October 2014. The proceedings involve a complex parenting dispute in…

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.

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Details

Case: [2014] FamCA 912
Decision Date: 27 October 2014

CaseChat Overview and Summary

In the matter of *Crawford & Sisinis and Anor*, Berman J of the Supreme Court of Victoria considered a dispute concerning the inspection and dissemination of documents produced by Ms Dolan of Practice B pursuant to a subpoena issued on 29 August 2014. The parties involved sought to clarify the terms under which these documents could be accessed and discussed.

The central legal issues before the Court were whether the legal representatives of the parties, including the Independent Children’s Lawyer, should be permitted to inspect documents produced by Ms Dolan, and whether an injunction should be granted to restrain the discussion of the contents of those documents.

Berman J reasoned that it was appropriate to grant liberty to inspect the subpoenaed documents, acknowledging the need for parties to access relevant evidence in proceedings. However, the Court also recognised the potential for prejudice or misuse of sensitive information contained within those documents. Consequently, the Court granted an injunction restraining the parties and their legal representatives from discussing the contents of the documents with any person not directly involved in the proceedings, thereby balancing the need for disclosure with the protection of confidential information.

The Court ordered that legal representatives for the parties, including the Independent Children’s Lawyer, be at liberty to inspect the documents produced by Ms Dolan. Furthermore, an injunction was granted restraining the parties and their legal representatives from discussing the contents of these documents with any person not directly related to the proceedings.

Orders

Orders of the court

The legal representatives for the parties including the Independent Children’s Lawyer be at liberty to inspect documents (including those marked confidential) produced by Ms Dolan of Practice B pursuant to subpoena issued on 29 August 2014.

The parties and their legal representatives be restrained and an injunction is hereby granted restraining them from discussing the contents of the documents produced pursuant to the said subpoena with any other person not directly related to the proceedings.

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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