FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KINGLEY & ARNDALE | [2008] FMCAfam 600 |
| FAMILY LAW – Subpoenas – legal profession privilege – abuse of process and privilege. |
| Family Law Act 1975, ss.60B; 60CA; 60CC; 60CG; 61B; 61DA; 64B; 65DAB; Evidence Act 1995 (Cth) ss.119; 133 |
| Applicant: | MR KINGLEY |
| Respondent: | MS ARNDALE |
| Intervener: | PRICE & ROOBOTTOM |
| File Number: | BRC 1363 of 2008 |
| Judgment of: | Purdon Sully FM |
| Hearing date: | 20 March 2008 |
| Date of Last Submission: | 20 March 2008 |
| Delivered at: | Brisbane |
| Delivered on: | 15 May 2008 |
REPRESENTATION
| Counsel for the Applicant: | Ms McMillan SC |
| Solicitors for the Applicant: | Jones Mitchell Lawyers |
| Counsel for the Respondent: | Mr Baston |
| Solicitors for the Respondent: | Hopgood Ganim Lawyers |
| Counsel for the Second Respondent: | Mr Kissick |
| Solicitors for the Second Respondent: | Price & Roobottom |
ORDERS
That on or before 19 May 2008 the Father file and serve an affidavit deposing to the following:-
(a)a response to the matters deposed to in Part B3 of the Mother’s affidavit filed 18 March 2008;
(b)whether he holds a current Australian Driver’s Licence, and if so any restrictions or conditions imposed thereon;
(c)the details of his attendances at any ATODS program including the dates of such attendances and the nature of any counselling undertaken;
(d)the proposed transportation arrangements for the child [X] born [in] 2006 if the interim parenting orders sought by the Father in his Application for Interim Orders filed 14 February 2008 are made by this court.
That on or before 30 May 2008, a Partner or duly authorised employee of Price & Roobottom Lawyers file and serve an affidavit detailing:-
(a)those documents in their possession limited to files containing the Father’s traffic history and charges relating to driving under the influence; and
(b)the evidence in support of the claim for privilege including the purpose and use or…
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- Kingley and Arndale [2008] FMCAfam 600
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- [2008] FMCAfam 600
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CaseChat Overview and Summary
The court was required to determine whether the Father should provide the requested information and documents, and if so, under what conditions. The court also had to consider the Mother's application to subpoena phone records from Telstra and additional documents from the Queensland Police. Furthermore, the court needed to address the issue of privilege claimed by the Father's legal representatives over certain documents and decide whether these documents should be disclosed.
The court ordered the Father to provide an affidavit addressing the Mother's concerns, including his response to specific allegations, details of his driver's licence, his participation in alcohol and other drug support programs, and his proposed transportation arrangements. The court also directed Price & Roobottom Lawyers to detail the documents they held and the basis for any claim of privilege. If the issue of privilege remained unresolved, the court scheduled a hearing before Federal Magistrate Jarrett. The court limited the subpoena issued by the Mother to Telstra to the specified phone records and restricted the dissemination of information contained in the documents produced. The court granted leave for the Father's legal representatives to comply with the order to produce their files and allowed the Mother to issue further subpoenas to the Queensland Police.
The court's orders were designed to facilitate the disclosure of necessary information and documents while protecting the interests of both parties and ensuring that the proceedings are conducted efficiently. The court maintained a balance between the need for information and the protection of privileged communications.
Orders
Orders of the court
1.
That on or before 19 May 2008 the Father file and serve an affidavit deposing to the following:-
(a) a response to the matters deposed to in Part B3 of the Mother’s affidavit filed 18 March 2008;
(b) whether he holds a current Australian Driver’s Licence, and if so any restrictions or conditions imposed thereon;
(c) the details of his attendances at any ATODS program including the dates of such attendances and the nature of any counselling undertaken;
(d) the proposed transportation arrangements for the child [X] born [in] 2006 if the interim parenting orders sought by the Father in his Application for Interim Orders filed 14 February 2008 are made by this court.
2.
That on or before 30 May 2008, a Partner or duly authorised employee of Price & Roobottom Lawyers file and serve an affidavit detailing:-
(a) those documents in their possession limited to files containing the Father’s traffic history and charges relating to driving under the influence; and
(b) the evidence in support of the claim for privilege including the purpose and use or intended use for which those documents were brought into existence.
3.
That the parties have liberty to apply if the filing of the affidavit by the Father pursuant to Order 1 does not resolve the issue of the information the Mother had sought from Price & Roobottom Lawyers, and that at any such Court appearance all parties be at liberty to appear by telephone.
4.
That if the issue of the claim of privilege in respect of the Price and Roobottom Lawyers’ files remains unresolved, then a hearing date be allocated before Federal Magistrate Jarrett to enable the deponent of any affidavit to be cross examined by the parties and for a ruling on the said claim of privilege.
5.
That for the purposes of the interim parenting orders only, the subpoena issued by the mother to Telstra be limited to the production of the phone records for the time period of 23 January 2008 to
28 January 2008 inclusive.
6.
That unless otherwise ordered, neither party is to disseminate information in any documents produced, including in relation to the information contained in any affidavit of the Father, other than for the purpose of conducting these proceedings.
7.
That leave is given for the Price & Roobottom Lawyers file produced to the Court in relation to the subpoena directed to it to be released to Price & Roobottom Lawyers to enable it to comply with Order 2 herein.
8.
That leave be granted to the Mother to issue any further subpoena to the Queensland Police in relation to the Father’s traffic history and the QP9 document.
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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