HOPKINS & HOPKINS - [2015] FCCA 1200

FEDERAL CIRCUIT COURT OF AUSTRALIA

HOPKINS & HOPKINS

[2015] FCCA 1200

Catchwords:
FAMILY LAW – Children – application in a Case – subpoena – application to release documents for inspection and copying – where documents are subpoenaed from a psychologist and a school counsellor – where documents already inspected by Independent Children’s Lawyer – meaning of family counselling.

Legislation:

Family Law Act 1975 (Cth), ss.10B, 10C, 10D, 10E, 38BD, 38R, 60CA, 69ZX

Federal Circuit Court of Australia Act 1999 (Cth), ss.93D, 115
Federal Circuit Court Rules 2001, r.15A.12

Cases cited:
Kidd & London [2011] FMCAfam 1084 followed
M & D [2003] FMCAfam 354
Relationships Australia (Qld) & M [2006] FamCA 1265; (2006) FLC 93-305; (2007) 37 Fam LR 12

Applicant:

MS HOPKINS

Respondent:

MR HOPKINS

File Number:

CSC 145 of 2011

Judgment of:

Judge Scarlett

Hearing date:

27 March 2015

Date of Last Submission:

27 March 2015

Delivered at:

Sydney

Delivered on:

14 May 2015

REPRESENTATION

Applicant:

In person

Solicitor for the Respondent:

Mr Lago

Solicitors for the Respondent:

Williams Graham Carman Solicitors

Independent Children's Lawyer:

Mr Newman

Solicitors for the Independent Children's Lawyer:

Newman Family Law

ORDERS

Orders 1 and 2 made on 10 November 2014 are discharged.
The documents returned to the Court under subpoenas issued to Ms B, Mind Matters, and Executive Director, Catholic Education Diocese of Cairns are to be released for inspection and copying by the parties PROVIDED THAT:
(a)Neither party is to discuss the contents of any of the documents with either of the children [X] or [Y];
(b)Neither party is to allow either of the children [X] or [Y] access to any of the documents; and
(c)No party is permitted to use any of the documents for any purpose other than these proceedings without the leave of the Court.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 145 of 2011

MS HOPKINS

Applicant

And

MR HOPKINS

Respondent

REASONS FOR JUDGMENT

Application

This is an Application by the Respondent Father for an order that would permit documents produced under subpoena to be released for inspection and copying, subject to certain safeguards. The Application is supported by the Independent Children’s Lawyer but opposed by the Applicant Mother.

Orders Sought

By Application in a Case filed on 6^th March 2015 the Father seeks the following orders:
1. That orders 1 and 2 of the Orders made by Judge Willis on 10 November 2014.
2. That the documents returned to the court under Subpoenas issued to Ms B, Mind Matters and Executive Director, Catholic Education Diocese of Cairns be released for inspection and copying by parties provided however that those copies shall not be used by either party for any other purpose whatsoever except for these proceedings, without leave of the court.
By her Response to an Application in a Case filed on 26^th March 2015, the…

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: [2015] FCCA 1200
Decision Date: 14 May 2015

CaseChat Overview and Summary

In the matter of *Hopkins & Hopkins*, heard before Judge Scarlett, the dispute concerned the release of documents obtained via subpoena for inspection and copying by the parties. The court was required to determine whether to permit the parties access to these documents, subject to certain conditions.

The central legal issue was the appropriate conditions to be imposed on the release of subpoenaed documents in family law proceedings, particularly where children were involved. The court considered the potential impact of the documents' contents on the children and the need to balance the parties' right to access relevant evidence with the protection of the children.

Judge Scarlett reasoned that while the documents were relevant to the proceedings, their release should be carefully managed to safeguard the children's welfare. Accordingly, the court ordered that the subpoenaed documents be released for inspection and copying, but imposed strict conditions. These conditions prohibited either party from discussing the documents with the children, allowing the children access to them, or using the documents for any purpose beyond the current proceedings without further court leave. The previous orders made on 10 November 2014 were discharged.

Orders

Orders of the court

Orders 1 and 2 made on 10 November 2014 are discharged.

The documents returned to the Court under subpoenas issued to Ms B, Mind Matters, and Executive Director, Catholic Education Diocese of Cairns are to be released for inspection and copying by the parties PROVIDED THAT:

(a) Neither party is to discuss the contents of any of the documents with either of the children [X] or [Y];

(b) Neither party is to allow either of the children [X] or [Y] access to any of the documents; and

(c) No party is permitted to use any of the documents for any purpose other than these proceedings without the leave of the Court.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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