Golly & Wolberink (No 2)
[2023] FedCFamC1F 970
•31 October 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Golly & Wolberink (No 2) [2023] FedCFamC1F 970
File number(s): NCC 1368 of 2019 Judgment of: SMITH J Date of judgment: 31 October 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE - client legal privilege – document prepared by mother – referred to in diary and elsewhere – examined by Court – not another “diary” – structured under legal headings - prepared for and given to lawyers for dominant purpose of obtaining legal advice and the conduct of these proceedings – no waiver – client legal privilege established. Legislation: Evidence Act 1995 (Cth) Pt 3.10, ss 118, 119 Division: Division 1 First Instance Number of paragraphs: 10 Date of hearing: 31 October 2023 Place: Newcastle Counsel for the Applicant: Mr Willoughby Solicitor for the Applicant: Hannaway Lawyers Counsel for the Respondent: Mr Guterres Solicitor for the Respondent: Sexton Family Law Counsel for the Independent Children's Lawyer: Mr Bateman Solicitor for the Independent Children's Lawyer: Bryant McKinnon Lawyers ORDERS
NCC 1368 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR GOLLY
Applicant
AND: MS WOLBERINK
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
SMITH J
DATE OF ORDER:
31 OCTOBER 2023
THE COURT ORDERS THAT:
1.The document produced to the Court by the First Respondent and marked for identification MFI 29 is the subject of client legal privilege.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Golly & Wolberink has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
In this matter there was a Notice to Produce served on the mother.
A variety of documents have been produced, including diaries, and there were privilege claims made. Privilege has not been pressed in respect of the diaries. The diaries have been provided to the other parties.
Arising from an annotation, referring to yet another document, a call was subsequently made for that further document. A 29 page long typed Word document (“the document”) was then produced to the Court in response to the call.
Client legal privilege is claimed in respect of the document on the basis that it was a document prepared by the mother at the request of legal advisors in the context of, and for, this litigation.
The parties agreed it was appropriate for me to look at the document to determine the issue of privilege.
The document is structured with major and minor headings identifying the legal and factual issues in the case. The headings use the same terms that might be used in written submissions in this case. Under each heading there are dot points with references to events and factual assertions. While some of the entries may have been taken from the diaries produced and transposed into the document, it is evident from the structure and contents of the document that it is not a “diary”. It is a summation of material by legal and factual issue.
The natural inference is that this document is, as the mother says, a confidential communication prepared by the mother at the request of her legal advisors and conveyed to her legal advisors for the dominant purpose of her legal advisors providing legal advice to her and for the mother being provided with professional legal services relating to these current proceedings.
I find that the document attracts client legal privilege relating to both legal advice within section 118 and litigation within section 119 of the Evidence Act 1995 (Cth). There has been no waiver by mere reference to its existence in a diary.
The document is marked for identification MFI 29. It is not required to be provided to any other party.
Those are my reasons.
I certify that the preceding ten (10) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 16 November 2023
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