Harkiss and Beamish - [2011] FMCAfam 527

FEDERAL MAGISTRATES COURT OF AUSTRALIA

HARKISS & BEAMISH

[2011] FMCAfam 527

FAMILY LAW – Subpoena to produce documents relating to family counselling – parties to counselling consent to production – whether the provider of family counselling nonetheless has a discretion to withhold production – meaning of the word “may” in s 10D(3)(a) – production of documents required – confidentiality belongs to the parties to family counselling and not the provider of the same.

Family Law Act 1975, ss.10D, 10E
Family Law Amendment (Shared Parental Responsibility Bill) 2005
Family Law Amendment (Shared Parental Responsibility Bill) Act 2006

Applicant:

MR HARKISS

Respondent:

MS BEAMISH

File Number:

WOC 553 of 2010

Judgment of:

Altobelli FM

Hearing dates:

24-27 May 2011

Date of Last Submission:

25 May 2011

Delivered at:

Sydney

Delivered on:

26 May 2011

REPRESENTATION

Counsel for the Applicant:

Mr Steward

Solicitors for the Applicant:

R & M Legal Solicitors & Attorneys

Counsel for the Respondent:

Mr Millar

Solicitors for the Respondent:

Dobinson Davey Clifford Simpson

Counsel for the Independent Children’s Lawyer:

Mr Maurice

Independent Children’s Lawyer:

Williamson Isabella Lawyers & Public Notaries

Solicitor for UnitingCare:

Watts McCray Lawyers

ORDERS

THE COURT ORDERS THAT:

UnitingCare is to produce the documents referred to in the relevant subpoena within 7 days.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT SYDNEY

WOC 553 of 2010

MR HARKISS

Applicant

And

MS BEAMISH

Respondent

REASONS FOR JUDGMENT

By way of a Notice of Objection to subpoena filed 2 February 2011, UnitingCare Unifam objects to the production of documents pursuant to a subpoena that was directed to it. The said Notice of Objection annexes to it a two page document setting out 13 points in support of the objection. I incorporate these points into these oral reasons.
Mr Marhinin, a partner at Watts McCray, appeared on behalf of Unifam yesterday to further address the court on the issue. By way of a short summary of the objection, Unifam asserts that their file firstly, relates to family counselling. This is not disputed by the father or mother in these proceedings. Secondly, that s 10D of the Family Law Act 1975 mandates the communications referred to in that section must not be disclosed. Thirdly, that production is resisted because family counselling is undertaken on the basis of an assumption of confidentiality, and that there is a substantial public interest policy in maintaining confidentiality in family counselling. Fourthly, moreover that as s 10E probably would prevent admissibility of the material, that in these circumstances, confidentiality under section 10D should be preserved.
Whilst I am grateful for these submissions, I think they miss the distinguishing feature of this particular case, and that is neither the mother nor the father object to production, and moreover, both parents consent to the family counsellor disclosing the communication under s 10D(3)(a).
Mr Marhinin submits that even in those circumstances,…

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 Harkiss and Beamish

Details

AGLC: Harkiss and Beamish [2011] FMCAfam 527
Case: [2011] FMCAfam 527
Decision Date: 26 May 2011

CaseChat Overview and Summary

In the matter of Harkiss and Beamish, the parties involved were Harkiss and UnitingCare, with the dispute centering around the production of certain documents. The case was heard in the Federal Circuit Court of Australia. The primary issue before the court was whether UnitingCare was obligated to produce the documents specified in the subpoena issued by Harkiss.

The legal question revolved around the scope of the subpoena and whether it was validly issued. Harkiss argued that the documents were necessary for the case and that the subpoena was correctly served. UnitingCare contested the subpoena's validity, arguing that it did not comply with the necessary legal standards and that the documents were not relevant to the case. The court needed to determine the validity of the subpoena and decide if UnitingCare was indeed required to produce the documents.

The court found that the subpoena was validly issued and properly served. It held that the documents were relevant to the proceedings and that UnitingCare was required to comply with the subpoena's demand. The court emphasised the importance of adhering to legal processes and ensuring that all parties have access to necessary documents in legal disputes. Consequently, the court ordered UnitingCare to produce the documents within a specified timeframe.

Orders

Orders of the court

THE COURT ORDERS THAT:

UnitingCare is to produce the documents referred to in the relevant subpoena within 7 days.

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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