HARDY & LEVESQUE - [2019] FCCA 377

FEDERAL CIRCUIT COURT OF AUSTRALIA

HARDY & LEVESQUE

[2019] FCCA 377

Catchwords:
FAMILY LAW – Practice and procedure – objection to subpoena – relevance – where the subpoena material relates to the Father’s mental health – evidence that the Father has an extensive history of mental illness and drug and alcohol abuse – balancing the best interests of the child against the public benefit in the protection of privacy – subpoena objections dismissed – legal representatives and Independent Children’s Lawyer permitted to inspect documents.

Legislation:

Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 62G, 65Z, 68L, 69ZT

Federal Circuit Court Rules 2001 (Cth), r.15A.09

Cases cited:

Harridge & Anor & Harridge & Anor [2010] FamCA 445
Merrill & Burt [2015] FamCA 159
National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

Sadek and Ors & Fall and Anor [2015] FamCAFC 23

Stott & Holgar & Anor [2017] FamCAFC 152

Applicant:

MS HARDY

Respondent:

MR LEVESQUE

File Number:

MLC 6100 of 2018

Judgment of:

Judge C.E. Kirton QC

Hearing date:

5 February 2019

Date of Last Submission:

5 February 2019

Delivered at:

Melbourne

Delivered on:

21 February 2019

REPRESENTATION

Counsel for the Applicant:

Ms Jenkins

Solicitors for the Applicant:

Caroline Counsel Family Lawyers

Counsel for the Respondent:

Ms Buchanan

Solicitors for the Respondent:

Knight Family Lawyers

ORDERS

The objection by the Father filed 5 November 2018 to inspection of documents produced on subpoena by Dr A is dismissed.
The objection by the Father filed 5 November 2018 and Ms B filed 15 November 2018 to inspection of documents produced on subpoena by Ms B is dismissed.
Save as otherwise ordered, in relation to all documents to which inspection is permitted, such documents may only be inspected by the legal representatives for the Father and the Mother and by the Independent Children’s Lawyer.
No document is to be shown to the Mother without the leave of the Court first obtained.

AND THE COURT NOTES THAT:
On 8 November 2018 Consent Orders were made that:
(a)The Father do all such acts and things necessary to submit to a Psychiatric Assessment to be conducted by Dr C, or such other psychiatrist as may be agreed between the parties to facilitate the preparation of a Report regarding his mental health.
(b)The independent psychiatrist chosen to conduct a Psychiatric Assessment of the Father be at liberty to:
(i)Inspect all documents produced to the Court pursuant to subpoena;
(ii)Communicate with the Father’s clinical psychologist and treating psychiatrist.

IT IS NOTED that publication of this judgment under the pseudonym Hardy & Levesque is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLC 6100 of 2018

MS HARDY

Applicant

and

MR LEVESQUE

Respondent

REASONS FOR JUDGMENT

Introduction

This dispute concerns objections to subpoenas served by the Mother’s lawyers on the Father’s treating psychiatrist and clinical psychologist. The Father objects to each of these subpoenas and the psychologist has also objected to the subpoena…

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.

Continue reading HARDY & LEVESQUE

Details

AGLC: HARDY & LEVESQUE [2019] FCCA 377
Case: [2019] FCCA 377
Decision Date: 21 February 2019

CaseChat Overview and Summary

In the Family Court of Australia, Judge C.E. Kirton QC considered objections raised by the Father to the inspection of documents produced on subpoena. The dispute concerned the relevance of these documents, which related to the Father's mental health, given his history of mental illness and drug and alcohol abuse.

The central legal issue before the Court was whether the subpoenaed documents, pertaining to the Father's mental health, were relevant to the proceedings. This required the Court to balance the best interests of the child against the public benefit in protecting an individual's privacy.

The Court reasoned that the documents were relevant to assessing the Father's mental health, which was a critical factor in determining the best interests of the child. The Court dismissed the objections to inspection, finding that the need for this evidence in the proceedings outweighed the privacy concerns. The Court ordered that the legal representatives for the Father and Mother, and the Independent Children’s Lawyer, be permitted to inspect the documents. However, the Mother was prohibited from viewing any document without prior leave of the Court.

Orders

Orders of the court

The objection by the Father filed 5 November 2018 to inspection of documents produced on subpoena by Dr A is dismissed.

The objection by the Father filed 5 November 2018 and Ms B filed 15 November 2018 to inspection of documents produced on subpoena by Ms B is dismissed.

Save as otherwise ordered, in relation to all documents to which inspection is permitted, such documents may only be inspected by the legal representatives for the Father and the Mother and by the Independent Children’s Lawyer.

No document is to be shown to the Mother without the leave of the Court first obtained.

AND THE COURT NOTES THAT:

On 8 November 2018 Consent Orders were made that:

(a) The Father do all such acts and things necessary to submit to a Psychiatric Assessment to be conducted by Dr C, or such other psychiatrist as may be agreed between the parties to facilitate the preparation of a Report regarding his mental health.

(b) The independent psychiatrist chosen to conduct a Psychiatric Assessment of the Father be at liberty to:

(i) Inspect all documents produced to the Court pursuant to subpoena;

(ii) Communicate with the Father’s clinical psychologist and treating psychiatrist.

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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