Farnell and Farnell & Anor - [2019] FamCA 981

FAMILY COURT OF AUSTRALIA

FARNELL & FARNELL AND ANOR

[2019] FamCA 981

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena objection – Where the children’s treating therapist objects to the production of his files – Where the Independent Children’s Lawyer submits the objection should be upheld – Where the inspection of material would compromise the therapeutic relations – Where it is not in the children’s best interest for the material to be inspected – Objection upheld.

FAMILY LAW – PRACTICE AND PROCEDURE – Appointment of adversarial expert – Where the father seeks the appointment of an adversarial expert – Where the criteria in Rule 15.49 of the Family Law Rules 2004 have not been met – Application dismissed – Where leave is granted to provide documents to a shadow expert.

Family Law Rules 2004 rr. 15.49, 15.64B, 15.65

CDJ v VAJ (1988) 197 CLR 172

APPLICANT:

Mr Farnell

RESPONDENT:

Ms Farnell

SECOND RESPONDENT:

Ms Pelino

INDEPENDENT CHILDREN’S LAWYER:

Morton Family Lawyers

FILE NUMBER:

SYC

659

2018

DATE DELIVERED:

19 December 2019

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

18 December 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Lawson

SOLICITOR FOR THE APPLICANT:

Nicole Evans Lawyers

SOLICITOR FOR THE RESPONDENT:

Beazley Lawyers

SOLICITOR FOR THE 2^ND RESPONDENT:

Gordon & Barry Lawyers Pty Ltd

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Morton Family Lawyers

Orders

IT IS ORDERED

That the objection by Mr B to the production and inspection of material relating to the children is upheld.
That the application of the father for permission to appoint an adversarial expert is dismissed.
That the solicitors for the father have leave to provide documents, including the report of Dr C, to Dr D for the purpose of his advising the father in the conduct of the proceedings.

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 Farnell & Farnell 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 COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 659 of 2018

Mr Farnell

Applicant

And

Ms Farnell

Respondent

And

Ms Pelino

Second Respondent

REASONS FOR JUDGMENT

This matter, which concerns the parenting arrangements for two girls aged 15 and 12, is listed for hearing for five days commencing on 17 February 2020.
There are two matters to be determined. The first is an objection by the children’s therapist to the production of his file. The second is the application by the father for permission to instruct an adversarial expert.
The second respondent was excused from appearance.

OBJECTION TO…

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: [2019] FamCA 981
Decision Date: 19 December 2019

CaseChat Overview and Summary

In *Farnell and Farnell & Anor*, the primary issue before Rees J of the Family Court of Australia concerned an objection raised by a children's treating therapist to the production and inspection of his files. The Independent Children's Lawyer supported this objection, arguing that disclosure would jeopardise the therapeutic relationship and was not in the children's best interests. A secondary issue involved the father's application for the appointment of an adversarial expert, which was also considered by the Court.

The Court was required to determine whether the children's treating therapist's objection to producing his files should be upheld, considering the potential impact on the therapeutic relationship and the children's welfare. Additionally, the Court had to assess whether the criteria for appointing an adversarial expert, as stipulated in Rule 15.49 of the *Family Law Rules 2004*, had been met by the father.

Rees J upheld the therapist's objection, finding that inspection of the material would indeed compromise the therapeutic relationship and was not in the children's best interests. The application for an adversarial expert was dismissed as the criteria under Rule 15.49 were not satisfied. However, the Court granted leave for the father's solicitors to provide certain documents, including a report by Dr C, to Dr D for the purpose of advising the father in the conduct of the proceedings, effectively allowing for a "shadow expert" role.

Orders

Orders of the court

IT IS ORDERED

That the objection by Mr B to the production and inspection of material relating to the children is upheld.

That the application of the father for permission to appoint an adversarial expert is dismissed.

That the solicitors for the father have leave to provide documents, including the report of Dr C, to Dr D for the purpose of his advising the father in the conduct of the proceedings.

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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