FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JERMYN & CARLING | [2012] FMCAfam 814 |
| FAMILY LAW – Practice and procedure – objection to subpoena – documents produced by Applicant’s psychologist – relevance – public interest test. |
| Family Law Act 1975, ss.60CA, 60H, 62G, 65DAA(5), 65F, 69ZN, 69ZQ Evidence Act 1995 (Cth), ss.55, 69, 135, 136 Evidence Act 1995 (NSW), s.126B Judiciary Act 1903 Privacy Act 1988 (Cth) Freedom of Information Act 1982 (Cth) |
| U & U (2002) 211 CLR 238 Duits & Duits 2006 CanLII 14407 Mellish v Martinson 1993 CanLII 1825 R v SLR 1991 CanLII 4532 “The Psychotherapist-Patient Privilege In The Family Court: An Exemplar Of Disharmony Between Social Policy Goals, Professional Ethics, And The Current State Of The Law” by Deborah Paruch published in Eliminating Unintended Bias National Association of Children’s Counsel Manual 2011. Baker v. Campbell (1983) 153 CLR 52 R v RJS 45 CR (3rd) 161 |
| Applicant: | MS JERMYN |
| Respondent: | MS CARLING |
| File Number: | PAC 3514 of 2009 |
| Judgment of: | Harman FM |
| Hearing date: | 20 July 2012 |
| Date of Last Submission: | 20 July 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 8 August 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mahony Family Lawyers |
| Solicitors for the Respondent: | Jacqui Griffin Solicitor & Attorney |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
Leave is granted to the Legal Representatives only and the Independent Children’s Lawyer to inspect material produced on subpoena…
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- AGLC
- Jermyn & Carling [2012] FMCAfam 814
- Case
- [2012] FMCAfam 814
- Decision Date
CaseChat Overview and Summary
The primary legal issue was the extent to which the material produced by Ms S could be inspected by the parties. The court had to balance the need for the Independent Children's Lawyer to have access to the material to effectively represent the children against the privacy and confidentiality rights of the individuals involved. The court was also required to consider the potential impact of disclosing the material on the therapeutic relationship between Ms S and her clients.
The court found that while the Independent Children's Lawyer and the legal representatives were entitled to inspect the material, not all of it should be disclosed. Specifically, the court granted leave for the inspection of material that had been excised from the document in response to a subpoena, but upheld the objection regarding the balance of the material. The court also made orders in accordance with a proposed minute from the Independent Children's Lawyer, and scheduled the case for further mention and status review. The court emphasized the importance of the parties reading and considering a report that would be ordered and released, to ensure they were prepared for the next stages of the proceedings.
Orders
Orders of the court
1.
Leave is granted to the Legal Representatives only and the Independent Children’s Lawyer to inspect material produced on subpoena by Ms S, psychologist as has been excised from the material produced in response to the subpoena.
2.
Otherwise the objection is upheld and the Court declines leave to inspect as regards balance of material produced by Ms S.
3.
Orders are made in accordance with the Minute of Proposed Orders of the Independent Children’s Lawyer marked Exhibit ‘A’ and inserting the name Dr B and amending 1.2.2.
4.
The proceedings are adjourned to 2.15pm on 20 August 2012 for mention and directions (if required) and for the sole purpose of dealing with any objections that are raised to the release and inspection of material produced on subpoena.
5.
The proceedings are adjourned to 2.15pm on 10 October 2012 for further mention and status review.
6.
Subject to the report ordered today having been completed and released to the parties, then the parties and each of them are to ensure:
(a) They have fully read and considered the report and any recommendations contained therein;
(b) They have provided full and proper instructions to their legal representatives; and
(c) Are in a position to authoritatively advise the Court of Orders proposed by them (if different to those proposed in their respective Application and Response), the judiciable issues that require hearing, and any variance that is required or suggested to be required as regard draft trial plan, marked Exhibit B.
7.
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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