KIRBY & KIRBY - [2014] FCCA 2332

FEDERAL CIRCUIT COURT OF AUSTRALIA

KIRBY & KIRBY

[2014] FCCA 2332

Catchwords:
FAMILY LAW – Practice and procedure – objection to a subpoena – relevance – physician-patient confidentiality – consideration of broader public interest.

Legislation:

Family Law Act 1975, ss.60B, 60CA, 60CC, 67ZBA(2), 69ZW

Federal Circuit Court Rules 2001, r.15A.14(2)
Evidence Act 1995 (Cth), s.55
Evidence Act 1995 (NSW), ss.126A(1), 126B

Amador & Amador (2009) 43 Fam LR 268
Jones & Dunkel (1959) 101 CLR 298
Jermyn & Carling [2012] FMCAfam 814
D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589
R. v S (RJ) (1985) 45 C.R. (3^d) 161
M. (A.) v. Ryan [1997] 1 S.C.R. 157

Articles cited:
Levy, J, Galambos, G and Skarbek, Y, ‘The erosion of psychiatrist-patient confidentiality by subpoenas’, Journal of Australasian Psychiatry, vol 22, no 4, 2014, 332-336.
Family Violence Best Practice Principles Edition 3.1 – April 2013
Ipp, J ‘Lawyers’ Duties to the Court’ 1998 (114) Law Quarterly Review 63.
Robertson, M.D, and Walter, G ‘Many faces of the dual-role dilemma in psychiatric ethics’ published in the Australian and New Zealand Journal of Psychiatry 2008 (42:2, 228-235)

Applicant:

MR KIRBY

Respondent:

MS KIRBY

File Number:

PAC 3341 of 2014

Judgment of:

Judge Harman

Hearing date:

26 August 2014

Date of Last Submission:

26 August 2014

Delivered at:

Parramatta

Reasons delivered on:

26 August 2014

REPRESENTATION

Solicitors for the Applicant:

Mr Duncombe of Dignan & Hanrahan Solicitors & Attorneys

Solicitors for the Respondent:

Mr Kallouche of Ck Lawyers

ORDERS

Grant leave to the parties and their legal representatives to inspect material produced on subpoena by:
(a)Department of Family And Community Services;
(b)(omitted) Medical Centre; and
(c)(omitted) Medical Centre.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT PARRAMATTA

PAC 3341 of 2014

MR KIRBY

Applicant

And

MS KIRBY

Respondent

REASONS FOR JUDGMENT

The proceedings

These are proceedings relating to both parenting and property adjustment issues.
The parties to the proceedings are Mr Kirby, the husband and Applicant, and Ms Kirby the wife and Respondent.
The parties were married (omitted) 1998 and separated on a final basis on either the first or 18^th of April 2014 (the earlier date being alleged by Ms Kirby and the latter by Mr Kirby). There is some issue as to the number of prior separations that have occurred and their duration, although, at least one prior separation is commonly acknowledged by both parties.
The proceedings come before the Court today by way of the listing of the first return date.

Issue for determination

At the first return date of these proceedings the matter would not ordinarily be listed for any form of interim or interlocutory hearing in the absence of a plea for such relief contained in either the Application or Response as filed. Whilst parenting relief is sought by the husband (and responded to…

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 KIRBY & KIRBY

Details

AGLC: Kirby and Kirby [2014] FCCA 2332
Case: [2014] FCCA 2332
Decision Date: 26 August 2014

CaseChat Overview and Summary

In the matter of *Kirby & Kirby*, heard before Judge Harman, the dispute concerned an objection to a subpoena. The parties involved were not explicitly named beyond the case title, but the context suggests a family law proceeding where one party sought to obtain documents from third parties, likely medical practitioners or related institutions, and the other party objected to the production of this material.

The central legal issues before the court were the relevance of the documents sought by the subpoena, the application of physician-patient confidentiality, and whether a broader public interest consideration warranted overriding these protections. The court was tasked with balancing the need for relevant evidence in family law proceedings against the privacy rights of individuals and the confidentiality expected in medical relationships.

Judge Harman's reasoning focused on the principles governing the issuance and objection to subpoenas in family law matters. The court considered the threshold for relevance, acknowledging that while physician-patient confidentiality is a significant consideration, it is not absolute and can be displaced where the public interest or the interests of justice demand it. The court's decision to grant leave for inspection of the subpoenaed material indicates a finding that the documents were sufficiently relevant to the proceedings and that any confidentiality concerns were outweighed by the need for disclosure in this specific family law context.

Consequently, the court ordered that leave be granted to the parties and their legal representatives to inspect the material produced on subpoena by the Department of Family and Community Services and two medical centres.

Orders

Orders of the court

Grant leave to the parties and their legal representatives to inspect material produced on subpoena by:

(a) Department of Family And Community Services;

(b) (omitted) Medical Centre; and

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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