Dixon & Dixon
[2025] FedCFamC2F 1082
•8 August 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Dixon & Dixon [2025] FedCFamC2F 1082
File number(s): DUC 510 of 2024 Judgment of: JUDGE DUNKLEY Date of judgment: 8 August 2025 Catchwords: FAMILY LAW - Parenting - interlocutory application - subpoena objection - protected confidence considered - costs Legislation: Family Law Act 1975 (Cth) ss 102BA, 102BE, 114UB Cases cited: Woods & Holmes (No 3) [2025] FedCFamC1F 463 Division: Division 2 Family Law Number of paragraphs: 38 Date of hearing: 25 July 2025 Place: Heard in Dubbo, delivered in Parramatta Solicitor for the Applicant: Ms Zujic of Paul Maginn Lawyers Solicitor for the Respondent: Ms Millar of MCW Lawyers ORDERS
DUC 510 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR DIXON
Applicant
AND: MS DIXON
Respondent
ORDER MADE BY:
JUDGE DUNKLEY
DATE OF ORDER:
8 AUGUST 2025
THE COURT ORDERS THAT:
1.The Notice of Objection to Subpoena filed 4 July 2025 relevant to the subpoena issued to the Proper Officer, B Authority, is dismissed.
2.The Notice of Objection to Subpoena filed 4 July 2025 relevant to the subpoena issued to the Proper Officer, C Authority, is dismissed.
3.Only the legal representatives of the applicant and respondent are allowed to inspect and to photocopy documents produced in answer to subpoena by C Authority and B Authority.
4.No copies in any form of documents produced by C Authority or B Authority are to be provided to Ms Dixon.
5.Each party shall pay their own costs relevant to the hearing of the subpoena objection.
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.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
JUDGE DUNKLEY
Mr Dixon (the father) and Ms Dixon (the mother) are involved in parenting litigation pursuant to Part VII of the Family Law Act as a consequence of the filing by the father of an Initiating Application on 20 December 2024 and the filing by the mother of a Response on 29 January 2025.
The father and mother were married in 2011, separated on 29 May 2022, and were divorced in late 2023.
They have two children, X, aged 11, who was born in 2014, and Y, aged 7, who was born in 2017.
In their parenting litigation, the father seeks in general terms orders for joint decision making, proposes that there be an order that the children live with their mother, and spend time with him.
The mother, for her part, seeks in general terms orders that she have sole decision making responsibility, that the children live with the mother, and leave to later file a document setting out her more general time with proposals but saying that the children at least spend time with the father for overnight periods at Christmas, Easter and for day time periods on their birthdays and on Father's Day.
It seems abundantly clear that in managing the case along the central practice direction pathway, that the docket judicial registrar has identified one of the central issues in this case is the mental health of the father and the mother with another issue relating to the mental/psychological health of X.
The above is apparent from orders 1, 5, 12, 13, 15, 16 and 17 made on 29 April 2025.
Paragraphs 27, 28, 29 and 41 of the Child Impact Report dated 10 April 2025 provide a useful summary of the mental and psychological health at issue in this case.
The Senior Judicial Registrar acting in accordance with the central practice direction, and in consideration of recommendations in the Child Impact Report, has made orders for the provision of a single expert report relevant to the mental health of the mother and father.
To ensure the single expert has all relevant information to enable the preparation of his or her report, the Senior Judicial Registrar made order 18 on 29 April 2025. Order 18 provides:
18.Leave be granted to the parties to provide the mental health assessor appointed in accordance with Order 16 of these Orders with the following:
18.1A copy of these Orders;
18.2The Child Impact Report dated 10 April 2025;
18.3The father’s Affidavit filed 20 December 2024;
18.4The father’s Notice of Family Violence, Child Abuse or Risk filed 20 December 2024;
18.5The mother’s Affidavit filed 25 February 2025; and
18.6The mother’s Notice of Family Violence, Child Abuse or Risk filed 29 January 2025; and
18.7A jointly prepared tender bundle, and for the purposes of this Order, that leave is granted to allow the parties’ legal representatives to photocopy any documents produced pursuant to the subpoenas issued in these proceedings and provide a copy of same to the mental health assessor within the joint tender bundle.
The mental health reports order become extremely important in this case because the Senior Judicial Registrar ordered (leave the obvious numerical numbering errors in the orders) on 29 April 2025 that the children spend time with the father but the progression of that time is conditional upon:
·the father disclosing information to the mother about his mental health treaters
·attending on three sessions of a men’s behaviour change program
·the father’s compliance with the obtaining of the single expert report relevant to his mental health; and
·X’s attendance for two sessions on his mental health treater.
It was submitted the following has occurred relevant to compliance with the orders made on 29 April 2025:
·that a mental health plan has issued for X who is engaged with that professional; and
·the obtaining of a single expert report relevant to the father and mother’s mental health has been stalled by this subpoena objection process.
On 9 April 2025, the mother caused to be issued two subpoena:
(a)to the Proper Officer, B Authority; and
(b)to the Proper Officer, C Authority
She did not require leave to do so because there was on foot, and still unheard, an interim orders hearing.
Documents are now produced by both B Authority and C Authority, and the father has inspect the produced material but the mother has not because of the subpoena objection.
On 4 July 2024, the father caused to be filed a Notice of Objection to inspect relevant to the above subpoenae citing a protected confidence existed of the type defined in Part XI, Division 1B at s 102BA.
The mother sought dismissal of the Notice of Objections submitting lack of jurisdiction arising from the notion of “functus officio” because of order 18 made on 29 April 2025.
That argument can be swiftly dismissed due to application of the Rules relevant to subpoena objection and because of the Court’s inherent power to control its own process. Therefore, the Court has power to hear and determine the father’s objection to subpoena.
The objection falls to be determined by application of the test in s 102BE which at its heart requires a decision to balance the notions of probative value v prejudice, a concept subject to substantive jurisprudence both in the family law jurisprudence and more generally.
I am satisfied the father’s disclosures to his treaters meets the definition of a protected confidence.
His Honour Justice Gill has dealt with a similar issue in Woods & Holmes (No 3) [2025] FedCFamC1F 463, being a very recent judgment delivered on 16 July 2025. Starting at paragraph 39 and continuing, his Honour analyses the application of s 102BE to the specific evidence in the case he was deciding.
Clearly whilst there are general principles, it is the evidence in each specific case that will be relevant to its determination.
This is a discretionary decision subject to the guidance set out in s 102BE as to the exercise of that discretion.
The father was given the opportunity to file an affidavit relevant to the considerations contained in s 102BE but chose not to do so.
His solicitor submits not all the disclosures and information in the produced documents is subject to the objection. For the main part, it is information relating to the father’s personal relationships that he seeks to be declared a protected disclosure.
It is submitted in written submissions filed on 24 July 2025, expanded/reaffirmed by oral submissions on 25 July 2025, that inspection of produced documents in part where they relate to disclosures he has made about his private life and personal relationships is likely to cause him mental distress and psychological harm or oppression as referenced in s 102BE(2)(b) and (c).
The material produced on subpoena likely has high probative value and high importance dealing as it does with a very relevant issue central to the decision about the father’s time with the children.
There is no evidence other documentation might help.
If the documents are produced and inspected, I accept the father would be embarrassed but that is the extent of the psychological harm and mental distress he would experience.
The Court can limit the harm by only allowing inspection by the parties’ lawyers not the parties themselves. The copy of the documents to be included in the ordered tender bundle can similarly be done by lawyers only.
His documents can then be considered by the single expert in preparation of the report.
The nature of the father’s personal relationships is relevant potentially under s 60CC(3)(e) and (f).
No issue of public interest in preserving confidentiality arises herein.
Having considered the above and the central importance of the father’s mental health in the decision making process in this case, the documents produced are not to be redacted before being provided to the single expert. The documents are to be inspected and copied only by a party’s legal representative and copies are not to be provided to nor shown to the wife herself.
The single expert report to be prepared goes to the heart of the time that the children are to spend with their father, and thus these directions have regard to the best interest of the children because the single expert report will be important in deciding what time and what periods of time it is best for the children to spend with their father.
These reasons fulfil the obligation placed on the court by s 102BE as a whole including s 102BE(6).
COSTS
Because so little jurisprudence exists relevant to ss 1BA to 102BE, there is little guidance available to litigants and so the provisions of s 114UB apply to this decision.
There is no circumstance justifying any other outcome relevant to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Dunkley. Associate:
Dated: 8 August 2025
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