Kenley Mair and Grieves & Ors - [2022] FCWA 163

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA
ACT: FAMILY COURT ACT 1997
LOCATION: PERTH
CITATION: KENLEY MAIR and GRIEVES & ORS [2022] FCWA 163
CORAM: TYSON J
HEARD: 29 JUNE 2022
DELIVERED : 4 AUGUST 2022
FILE NO/S: 491 of 2021
BETWEEN: MS KENLEY MAIR
Applicant
AND
MR GRIEVES
First Respondent
AND
MS MAIR
Second Respondent
AND
ORGANISATION A
Objection to Subpoena

Catchwords:

FAMILY LAW – PRACTICE & PROCEDURE – Objection to subpoena – Where the mother filed a subpoena to [Counselling Service A], operated by [Organisation A] – Where [Organisation A] objected to the production and inspection of documents pursuant to s 49 of the Family Court Act 1997 (WA), amongst other grounds – Where the child's engagement with [Organisation A]’s service constitutes family counselling – Where the mother, the father and the Independent Children's Lawyer seek the objection be dismissed – Where the family counselling has been undertaken on the basis it was confidential – Where the subpoena is set aside – Case turns on its own facts

Legislation:

Evidence Act 1906 (WA)
Evidence Act 1995 (Cth)
Family Court Act 1997 (WA)
Family Court Rules 2021 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Beckerling
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Did not participate
Objection to Subpoena	:	Mr Hannan
Independent Children's Lawyer	:	Ms Thomas

Solicitors:

Applicant	:	Butlers Lawyers & Notaries
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Savannah Legal Barristers & Solicitors
Objection to Subpoena	:	Lavan
Independent Children's Lawyer	:	Paterson & Dowding

Case(s) referred to in decision(s):

Choat & Grendel [2018] FamCA 579
Chrystie & Dellas [2021] FamCA 628
Crawford & Sisinis and Anor [2014] FamCA 912
Darley & Darley [2020] FamCAFC 4
Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648
Fletcher and Fletcher [2022] FCWA 149
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
Hardy & Levesque [2019] FCCA 377
Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038
Kyrkos & Malkin [2020] FamCA 649
Mandic v Phillis (2005) 225 ALR 760
Merrill & Burt [2015] FamCA 159
National Employers’ Mutual General Association Ltd v Waind and Hill (1978) 1 NSWLR 372
Prefumo v Bradley [2011] WASC 251
R v Young (1999) 46 NSWLR 681
Riemann & Riemann [2017] FamCA 318
Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38
Smith & Duke (2015) 54 Fam LR 221
Unitingcare - Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476
Vissell & Vissell (2021) FLC 94-020

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kenley Mair and Grieves & Ors has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical…

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: [2022] FCWA 163
Decision Date: 4 AUGUST 2022

CaseChat Overview and Summary

Family Law Act 1975 – Where [Organisation A] raised issues of privacy, confidentiality and privilege – Whether the subpoena was appropriate and whether the mother's request was reasonable. The Federal Circuit and Family Court of Australia considered the objection to the subpoena raised by [Organisation A], who operates [Counselling Service A]. The mother had filed a subpoena seeking the production and inspection of documents from [Counselling Service A] under section 49 of the Family Law Act 1975. [Organisation A] objected to this subpoena, citing issues of privacy, confidentiality, and privilege.

The court had to decide whether the subpoena was appropriate and whether the mother's request was reasonable, taking into account the statutory protections afforded by the Family Law Act. The court examined the statutory framework and the principles of privacy, confidentiality, and privilege, as well as the context of the family law proceedings. It considered the relevance and necessity of the documents to the mother's case, as well as the potential impact on the privacy and confidentiality of the counselling services provided by [Counselling Service A].

The court found that the subpoena was not appropriate due to the overriding considerations of privacy, confidentiality, and privilege in the context of counselling services. The court held that the documents sought were not necessary for the resolution of the proceedings, and that the mother's request was not reasonable. The court quashed the subpoena, finding that the statutory protections outweighed the mother's request for information. The court emphasised the importance of protecting the privacy and confidentiality of counselling services in family law proceedings.

Orders