Grant and Andrews and Anor - [2018] FamCA 901

FAMILY COURT OF AUSTRALIA

GRANT & ANDREWS AND ANOR

[2018] FamCA 901

FAMILY LAW – PRACTICE AND PROCEDURE – where the mother has subpoenaed medical and psychological counselling records – where the records pertain to the father, the father’s wife and the child – where the father and his wife object to inspection – where medical professionals object to inspection –– where the subpoenaed material may be relied upon for a Rice & Asplund hearing – where the mother’s evidence must be taken at its highest – where orders are made for the Independent Children’s Lawyer to have first right of access – where the Independent Children’s Lawyer can relist the matter to prevent access by the parties or their legal representatives.

Family Law Act 1975 (Cth)
Family Law Rules 2004 (Cth)
Evidence Act 1995 (NSW)
Judiciary Act 1903 (Cth)
United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, UNTS 1557 (entered into force 2 September 1990) art 16.

Andrews & Grant (No.2) [2015] FCCA 953
Attorney General for the State of New South Wales v Chidgey (2008) 182 A Crim R 536.
In the Marriage of Rice & Asplund (1978) 6 Fam LR 570.
Lindon v The Commonwealth of Australia No (2) (1996) 136 ALR 251
Marsden & Winch (2009) 42 FamLR 1.
Regina v Saleam [1999] NSWCCA 56

Walter & Walter [2016] FamCAFC 56

APPLICANT:

Ms Grant

RESPONDENT:

Mr Andrews

INTERESTED PERSON:

Ms Digby

INDEPENDENT CHILDREN’S LAWYER:

Independent Children's Lawyer

FILE NUMBER:

SYC

3007

2009

DATE DELIVERED:

6 November 2018

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

Rees J

HEARING DATE:

24 October 2018

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Levy

SOLICITOR FOR THE APPLICANT:

York Law

SOLICITOR FOR THE RESPONDENT:

Clinch Long Woodbridge Lawyers

COUNSEL FOR THE INTERESTED PERSON:

Mr O’Reilly

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Brian Samuel & Associates

Orders

IT IS ORDERED

That the objection to inspection of documents produced on subpoena by B School is dismissed.
That the objection to inspection of documents produced on subpoena by Ms C is upheld.
That the objection to inspection of documents produced on subpoena by Dr D is dismissed in part. Inspection of documents produced pursuant to paragraphs 4, 5 and 6 of the subpoena is allowed.
That the objection to inspection of documents produced on subpoena by Mr E is upheld.
That the objection to inspection of documents produced on subpoena by Dr F is dismissed in part. Inspection is permitted of documents created after 1 January 2016.
That the objection to inspection of documents produced on subpoena by Dr G is dismissed in part. Inspection of documents produced pursuant to paragraphs 4 and 5 is allowed.
That the objection to inspection of documents produced on subpoena by the Department of Human Services is upheld.
That the objection to inspection of documents produced on subpoena by H Hospital is dismissed in part. Inspection of documents is allowed in relation only to documents relating to any admission…

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: [2018] FamCA 901
Decision Date: 6 November 2018

CaseChat Overview and Summary

In *Grant and Andrews and Anor*, Rees J considered objections to the inspection of documents produced on subpoena in proceedings involving Ms Digby. The primary dispute concerned the extent to which documents produced by various third parties, including B School, Ms C, Dr D, Mr E, Dr F, Dr G, the Department of Human Services, and H Hospital, should be available for inspection by the parties to the litigation.

The court was required to determine which of the objections to inspection were valid and, consequently, which documents, if any, should be withheld from inspection. This involved assessing the nature of the documents produced and the grounds upon which inspection was resisted by the subpoenaed parties.

Rees J applied principles governing the inspection of subpoenaed documents, balancing the need for disclosure in litigation against the privacy and confidentiality interests of third parties. The court's reasoning led to a series of specific orders regarding inspection. Inspection was upheld for some subpoenaed parties, dismissed for others, and permitted in part for several, often with limitations on the scope or date of the documents. The court also made detailed orders concerning the timing and recipients of inspection, including specific provisions for the Independent Children’s Lawyer and the parties' legal representatives, while strictly prohibiting direct disclosure to the mother without further court leave.

Orders

Orders of the court

IT IS ORDERED

That the objection to inspection of documents produced on subpoena by B School is dismissed.

That the objection to inspection of documents produced on subpoena by Ms C is upheld.

That the objection to inspection of documents produced on subpoena by Dr D is dismissed in part. Inspection of documents produced pursuant to paragraphs 4, 5 and 6 of the subpoena is allowed.

That the objection to inspection of documents produced on subpoena by Mr E is upheld.

That the objection to inspection of documents produced on subpoena by Dr F is dismissed in part. Inspection is permitted of documents created after 1 January 2016.

That the objection to inspection of documents produced on subpoena by Dr G is dismissed in part. Inspection of documents produced pursuant to paragraphs 4 and 5 is allowed.

That the objection to inspection of documents produced on subpoena by the Department of Human Services is upheld.

That the objection to inspection of documents produced on subpoena by H Hospital is dismissed in part. Inspection of documents is allowed in relation only to documents relating to any admission of Ms Digby to the hospital after 1 January 2016.

That in relation to all documents in relation to which inspection is permitted, such documents may only be inspected by the Independent Children’s Lawyer (“ICL”) until 12 November 2018.

10.

That leave is granted to the ICL to apply on short notice by arrangement with the associate to the Honourable Justice Rees if the ICL determines that inspection of any document by any party is inappropriate.

11.

Subject to Order 10, after 12 November 2018, the documents may be inspected by the legal representatives of the mother only, and by the father and his legal representatives.

12.

No document is to be shown to the mother, nor the contents of any documents disclosed to her, without the leave of the Court first obtained.

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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