Dargan and Chesnik - [2010] FMCAfam 726

FEDERAL MAGISTRATES COURT OF AUSTRALIA

DARGAN & CHESNIK

[2010] FMCAfam 726

FAMILY LAW – Practice and procedure – evidence – parenting application – whether mother waived legal professional privilege.

Evidence Act 1995, ss.118, 119, 122(2) & (3)

Bennett v Chief Executive Officer of the Australian Customs Service [2004] FCAFC 237
Mann & Carnell [1999] HCA 66
Macquarie Bank Limited & B and Anor [2006] FamCA 1052

Applicant:

MR DARGAN

Respondent:

MS CHESNIK

File Number:

SYC 3607 of 2008

Judgment of:

Demack FM

Hearing date:

29 June 2010

Date of Last Submission:

29 June 2010

Delivered at:

Brisbane

Delivered on:

9 July 2010

REPRESENTATION

Counsel for the Applicant:

Mr Gordon

Solicitors for the Applicant:

BL Crane & Associates

Counsel for the Respondent:

Mr S Priestley

Solicitors for the Respondent:

Wall & Company Lawyers

Solicitors for the Independent Children’s Lawyer:

Legal Aid Commission New South Wales

ORDERS

That the following documents are to be produced by the mother:
(a)All correspondence and/or other communications between the mother and/or her legal representatives and each and every person the mother has, at any time sought to be a witness in these parenting proceedings:
(i)With each and every legal representative;
(ii)At any time since engaging any lawyer;
(iii)Any potential witness whether or not an affidavit has been sworn or affirmed, filed or read in Court;
(iv)Including but not limited to statutory declarations, affidavits, statements, emails, letters, phone messages and file notes, including drafts of any of these;
(v)All correspondence communication in any form, being written, electronic or otherwise; and
(vi)In its entirety, unedited, unexpunged, with any attachments, annexures or further material contained therein.
That the mother is to cause her present solicitors to write to each of the mother’s former solicitors enclosing this Order, with specific reference contained in the covering letter to the requirement of the production of the documents referred to in Order 1(a)(i)-(vi) hereof.
That the letter to each of the former solicitors be sent within three (3) business days of the date of these Orders.
That the mother’s present solicitors are to request of each of the mother’s former solicitors the release of the documents referred to in Order 1(a)(i)-(vi) hereof within fourteen (14) days.
That the mother is to pay the reasonable costs, if any, incurred by each of her former solicitors in producing the documents referred to in Order 1(a)(i)-(vi) hereof.
That the mother is to cause her present solicitors to provide full disclosure of the documents to the solicitors for the father referred to in Order 1(a)(i)-(vi) hereof within two (2) business days of them, or each of them, being received by the present solicitor for the mother.
That the mother cause her present solicitors to copy the father’s solicitor into all correspondence with each of the mother’s former solicitors, and for the mother to cause her present solicitors to ask of all of the former solicitors to copy the father’s solicitors into all correspondence in reply or otherwise arising from this Order.

IT IS NOTED that publication…

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: [2010] FMCAfam 726
Decision Date: 9 July 2010

CaseChat Overview and Summary

The case of Dargan and Chesnik involved a dispute between the mother and father regarding the production of various documents relevant to their parenting proceedings. The mother was ordered by the Family Court of Australia to provide comprehensive documentation from her past and present legal representatives and any potential witnesses. This included all forms of correspondence, statutory declarations, affidavits, emails, letters, phone messages, and any other relevant materials, regardless of whether they had been previously sworn, affirmed, filed, or read in court.

The primary legal issues revolved around the scope of discovery in parenting cases and the necessity for full disclosure to ensure a fair and transparent process. The court was required to determine whether the mother’s obligations to provide such extensive documentation were justified and enforceable, and if the mother's current legal team should assist in retrieving and disseminating these documents to the father’s legal representatives.

The court ruled in favour of the father, mandating that the mother produce the specified documents within a defined timeframe. It was held that such comprehensive disclosure was necessary to prevent any potential unfairness and to ensure both parties had access to all relevant information. The court emphasised the importance of transparency and fairness in parenting disputes, reinforcing that both parents should have equal access to all pertinent documentation. Consequently, the mother was ordered to cover any reasonable costs incurred by her former solicitors in producing the documents, and to facilitate their immediate disclosure to the father’s solicitors.

Orders

Orders of the court

That the following documents are to be produced by the mother:

(a) All correspondence and/or other communications between the mother and/or her legal representatives and each and every person the mother has, at any time sought to be a witness in these parenting proceedings:

(i) With each and every legal representative;

(ii) At any time since engaging any lawyer;

(iii) Any potential witness whether or not an affidavit has been sworn or affirmed, filed or read in Court;

(iv) Including but not limited to statutory declarations, affidavits, statements, emails, letters, phone messages and file notes, including drafts of any of these;

(v) All correspondence communication in any form, being written, electronic or otherwise; and

(vi) In its entirety, unedited, unexpunged, with any attachments, annexures or further material contained therein.

That the mother is to cause her present solicitors to write to each of the mother’s former solicitors enclosing this Order, with specific reference contained in the covering letter to the requirement of the production of the documents referred to in Order 1(a)(i)-(vi) hereof.

That the letter to each of the former solicitors be sent within three (3) business days of the date of these Orders.

That the mother’s present solicitors are to request of each of the mother’s former solicitors the release of the documents referred to in Order 1(a)(i)-(vi) hereof within fourteen (14) days.

That the mother is to pay the reasonable costs, if any, incurred by each of her former solicitors in producing the documents referred to in Order 1(a)(i)-(vi) hereof.

That the mother is to cause her present solicitors to provide full disclosure of the documents to the solicitors for the father referred to in Order 1(a)(i)-(vi) hereof within two (2) business days of them, or each of them, being received by the present solicitor for the mother.

That the mother cause her present solicitors to copy the father’s solicitor into all correspondence with each of the mother’s former solicitors, and for the mother to cause her present solicitors to ask of all of the former solicitors to copy the father’s solicitors into all correspondence in reply or otherwise arising from this Order.

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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