FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Davidson & Betts [2025] FedCFamC2F 696
File number(s): MLC 2601 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 23 April 2025 Catchwords: FAMILY LAW – Parenting – Subpoena objections – Where mother seeks documents relating to father’s health – Where mother alleges family violence – Where mother alleges coercive control from father by misrepresenting terminal medical illness – Where father alleges he suffers from cardiac condition – Mother seeks documents and information from health services – Subpoena objections by health services for lack of forensic purpose, lack of relevance and ambiguity of drafting – Subpoenas found to be relevant – Forensic purpose demonstrated – Subpoenas sufficiently clear to be interpreted – Objections dismissed. Legislation: Family Law Act 1975 (Cth) ss 60CC, 114Q Cases cited: Papadopoulos& Papadopoulos [2007] FamCA 1683
Sadek and Ors & Hall and Anor [2015] FamCAFC 23, (2015) FLC 93-634
Vissell & Vissell [2021] FamCAFC 76, (2021) FLC 94-020
Division: Division 2 Family Law Number of paragraphs: 23 Date of hearing: 23 April 2025 Place: Melbourne Solicitor for the Applicant: Ms Moloney, Michelle Moloney Family Lawyers Counsel for the Respondent: Mr Rohani Solicitor for the Respondent: Aboriginal Family Violence Prevention & Legal Service Counsel for the Independent Children's Lawyer: Ms Stavrakakis Solicitor for the Independent Children's Lawyer: Trapski Family Law Counsel for the First Objector Mr Fudim Counsel for the Second Objector Mr Teng ORDERS
MLC 2601 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DAVIDSON
Applicant
AND: MS BETTS
Respondent
B GROUP
First Objector
C MEDICAL CENTRE
Second Objector
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
23 APRIL 2025
THE COURT ORDERS THAT:
1.The Notices of Objection filed by the First and Second Objectors on 10 April 2025 and 8 April 2025, respectively, be and are dismissed.
2.As soon as practicable, the First Objector, B Group, produce all medical records in their possession relating to the applicant father, MR DAVIDSON (‘the Father’), pursuant to the relevant subpoenas filed on 21 March 2025 to the Court, including records regarding any psychological counselling and/or attendances by the Father and all attendance records regarding the Father.
3.The subpoena material produced by the First Objector be electronically released to the parties’ legal practitioners (including counsel) and the Independent Children’s Lawyer in the following manner and on the following terms:
(a)Upon the parties’ legal representatives and the Independent Children’s Lawyer giving a written undertaking to the court, in the prescribed form, the parties’ legal representatives and the Independent Children’s Lawyer be provided with an electronic copy of the documents produced under subpoena.
(b)The legal representatives and the Independent Children’s Lawyer be restrained from creating, disseminating or otherwise distributing copies of the subpoenaed documents (either electronically, in printed format, or otherwise) to their client or any other person, save for an agent, or such other person directed by the legal representative to complete the inspection…
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CaseChat Overview and Summary
In addressing the objections, the court found that the subpoenas were relevant to the proceedings, as they pertained to the father’s health, which was central to the parenting dispute. The court also concluded that the subpoenas served a forensic purpose by providing necessary information to assess the father's health and the impact of any alleged coercive control. Furthermore, the court held that the subpoenas were clear enough for the objecting health services to understand and comply with, dismissing the argument of ambiguity. Consequently, the objections were dismissed, and the subpoenas were upheld.
The court ordered that the health services must produce all relevant medical records as specified in the subpoenas. The records are to be shared with the legal representatives and the Independent Children's Lawyer under strict conditions to prevent unauthorised distribution. The records must be destroyed after the proceedings conclude, ensuring compliance with privacy laws. This ruling ensures that the necessary information is available for the court to make informed decisions regarding the parenting dispute.
Orders
Orders of the court
MLC 2601 of 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:
MR DAVIDSON
Applicant
AND:
MS BETTS
Respondent
B GROUP
First Objector
C MEDICAL CENTRE
Second Objector
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
23 APRIL 2025
THE COURT ORDERS THAT:
1. The Notices of Objection filed by the First and Second Objectors on 10 April 2025 and 8 April 2025, respectively, be and are dismissed.
2. As soon as practicable, the First Objector, B Group, produce all medical records in their possession relating to the applicant father, MR DAVIDSON (‘the Father’), pursuant to the relevant subpoenas filed on 21 March 2025 to the Court, including records regarding any psychological counselling and/or attendances by the Father and all attendance records regarding the Father.
3. The subpoena material produced by the First Objector be electronically released to the parties’ legal practitioners (including counsel) and the Independent Children’s Lawyer in the following manner and on the following terms:
(a) Upon the parties’ legal representatives and the Independent Children’s Lawyer giving a written undertaking to the court, in the prescribed form, the parties’ legal representatives and the Independent Children’s Lawyer be provided with an electronic copy of the documents produced under subpoena.
(b) The legal representatives and the Independent Children’s Lawyer be restrained from creating, disseminating or otherwise distributing copies of the subpoenaed documents (either electronically, in printed format, or otherwise) to their client or any other person, save for an agent, or such other person directed by the legal representative to complete the inspection on their behalf.
(c) Upon the completion of the final hearing, any copies of the subpoena material are to be destroyed and permanently deleted from any storage or retrieval system within 29 days (howsoever held by the lawyer, including by email, cloud storage or otherwise) of final orders, or in the event of an appeal, the finalisation of the appeal.
4. The subpoena material produced to the Court by the Second Objector on 8 April 2025 be electronically released to the parties’ legal practitioners (including counsel) and the Independent Children’s Lawyer in the following manner and on the following terms:
(a) Upon the parties’ legal representatives and the Independent Children’s Lawyer giving a written undertaking to the court, in the prescribed form, the parties’ legal representatives and the Independent Children’s Lawyer be provided with an electronic copy of the documents produced under subpoena.
(b) The legal representatives and the Independent Children’s Lawyer be restrained from creating, disseminating or otherwise distributing copies of the subpoenaed documents (either electronically, in printed format, or otherwise) to their client or any other person, save for an agent, or such other person directed by the legal representative to complete the inspection on their behalf.
(c) Upon the completion of the final hearing, any copies of the subpoena material are to be destroyed and permanently deleted from any storage or retrieval system within 29 days (howsoever held by the lawyer, including by email, cloud storage or otherwise) of final orders, or in the event of an appeal, the finalisation of the appeal.
AND THE COURT NOTES THAT:
A. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court. Penalties may apply under section 114Q of the Family Law Act 1975 (Cth) to the communication of any material contained in the subpoena material other than for use in connection with the proceedings.
B. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
C. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme (“the Scheme”) for representation but any such application must be made at least 12 weeks prior to the final hearing.
D. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
E. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law 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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