Fleming and Fleming - [2016] FamCA 362

FAMILY COURT OF AUSTRALIA

FLEMING & FLEMING

[2016] FamCA 362

FAMILY LAW – PRACTICE AND PROCEDURE – Release and use of expert report – Where the father seeks the release of the single expert report for use in Apprehended Violence Order proceedings brought against him in the New South Wales Local Court – Where the Apprehended Violence Order sought by the police lists the children as protected persons – Whether the implied obligation applies to the single expert report – Consideration of Sahadi & Savva and Anor [2016] FamCAFC 65 – Where the Court finds the implied obligation does not apply to the single expert report – Whether in exercising the Court’s discretion the single expert report should be released – Where the Court finds it is not in the public interest for single expert reports to be released without redaction and without an undertaking being provided to seek a non- publication order.

Family Law Act 1975 (Cth) ss 121

British American Tobacco Australia Services Ltd v Cowell (2003) 8 VR 571
Harman v Secretary of State for the Home Department [1983] 1 AC 280
Hearne and Anor v Street and Ors (2008) 235 CLR 125
Sahadi & Savva and Anor [2016] FamCAFC 65

APPLICANT:

Mr Fleming

RESPONDENT:

Ms Fleming

INDEPENDENT CHILDREN’S LAWYER:

Mr Fernie (as agent for Mr Samuel)

FILE NUMBER:

SYC

2944

2013

DATE DELIVERED:

18 May 2016

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

10 May 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Othen

SOLICITOR FOR THE APPLICANT:

Mervyn Finlay Thorburn & Marshall

SOLICITOR FOR THE RESPONDENT:

Mr Long of Clinch Long Letherbarrow

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

Subject to Orders 2 and 3 below, the father’s legal representatives be granted leave to provide a copy of the report of Dr B dated 4 February 2016 (“the Report”), redacted in terms of Order 2 below, to the following persons for the purposes only of the Report being tendered in evidence at the hearing of an application for an Apprehended Violence Order (“AVO”) commenced by the New South Wales Police against the father in the New South Wales Local Court (“the AVO proceedings”):
a)Mr Fleming (“the father”) and/or his legal representative(s);
b)The New South Wales Police and/or their legal representative(s) appearing on their behalf in the AVO proceedings; and
c)The New South Wales Local Court Magistrate presiding over the AVO proceedings involving the father and the New South Wales Police listed for hearing in the New South Wales Local Court on 30 May 2016.
Prior to the release of the Report pursuant to Order 1 above, the father’s legal representatives must, to the satisfaction of the mother and her legal representatives, and failing agreement, to the satisfaction of the Court:
a)Redact the Report by deleting material that is not reasonably related to the AVO proceedings.
The father and/or his legal representatives on the father’s behalf are, prior to the provision of a copy of the Report…

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: [2016] FamCA 362
Decision Date: 18 May 2016

CaseChat Overview and Summary

In the matter of Fleming and Fleming, McClelland J of the Supreme Court of New South Wales considered an application concerning the disclosure of a report prepared by Dr B. The dispute involved the father's legal representatives seeking leave to provide a redacted copy of this report to specific parties for use in apprehended violence order (AVO) proceedings initiated by the New South Wales Police against the father in the Local Court.

The central legal issue before the Court was whether to grant leave for the disclosure of Dr B's report, and under what conditions, to facilitate the AVO proceedings. This involved balancing the need for relevant evidence to be available to the parties and the court in the AVO proceedings against the potential for wider publication or misuse of the report's contents.

McClelland J reasoned that disclosure was permissible, subject to strict conditions designed to protect the report's confidentiality. The Court ordered that the father's legal representatives could provide a redacted copy of the report to the father, his legal representatives, the New South Wales Police, their legal representatives, and the presiding Magistrate in the AVO proceedings. Crucially, prior to release, the report had to be redacted to remove material not reasonably related to the AVO proceedings, with any disagreements to be resolved by the Court. Furthermore, the father and his legal representatives were required to provide a written undertaking to the Supreme Court not to publish the report's contents beyond the AVO proceedings without further leave, and to seek an order from the Local Court restricting its use solely for the purposes of those proceedings.

Orders

Orders of the court

Subject to Orders 2 and 3 below, the father’s legal representatives be granted leave to provide a copy of the report of Dr B dated 4 February 2016 (“the Report”), redacted in terms of Order 2 below, to the following persons for the purposes only of the Report being tendered in evidence at the hearing of an application for an Apprehended Violence Order (“AVO”) commenced by the New South Wales Police against the father in the New South Wales Local Court (“the AVO proceedings”):

a) Mr Fleming (“the father”) and/or his legal representative(s);

b) The New South Wales Police and/or their legal representative(s) appearing on their behalf in the AVO proceedings; and

c) The New South Wales Local Court Magistrate presiding over the AVO proceedings involving the father and the New South Wales Police listed for hearing in the New South Wales Local Court on 30 May 2016.

Prior to the release of the Report pursuant to Order 1 above, the father’s legal representatives must, to the satisfaction of the mother and her legal representatives, and failing agreement, to the satisfaction of the Court:

a) Redact the Report by deleting material that is not reasonably related to the AVO proceedings.

The father and/or his legal representatives on the father’s behalf are, prior to the provision of a copy of the Report as provided for in Order 1 above, to do the following:

a) Provide a written undertaking to this Court to be filed in the Registry at Sydney:

i) Not to publish or release the contents of the Report to any person other than a legal representative in the AVO proceedings, without further leave of this Court; and

ii) To make an application for an order from the New South Wales Local Court directed to any such persons not to publish or release the contents of the Report outside the AVO proceedings and that the Report is to be used only for the purposes of the AVO proceedings.

Leave is granted to the parties’ legal representatives and the Independent Children’s Lawyer to re-list this matter in respect to the above Orders on twenty-four (24) hours’ notice to my chambers and to the other parties.

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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