KNAUS and KNAUS - [2010] FMCAfam 1370

FEDERAL MAGISTRATES COURT OF AUSTRALIA

KNAUS & KNAUS

[2010] FMCAfam 1370

FAMILY LAW – Family law and child welfare – the Family Law Act 1975 (Cth) and related legislation – confidentiality of subpoenaed material from therapeutic counsellor.

Family Law Act 1975, ss.10C, 10D, 10E, 10F, 10G, 10J, 69ZT(1)
Evidence Act 1995, s.131

EI Dupont de Nemours & Co v Imperial Chemical Industries PLC (2002) FCA 230
Field & Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285; 32 ALJR 110
In the Marriage of Lace (1981) 7 Fam LR 631
Rogers & Rogers (1964) 114 CLR 608
Telstra Corporation Limited v Australis Media Holdings (No 2) (1997) 41 NSWLR 346
Wilson & Roberts (No.2) [2010] FamCA 734

Batterby, “Confidentiality and admissibility of documents or facts disclosed during a negotiation or other ADR process” (1992) 26 Australian Construction Law Newsletter 27
McNicol, Law of Privilege, 1992 Rogers & Rogers (1964) 114 CLR 608
Smark, “Privilege under the Evidence Acts” (1995) 18 University of New South Wales Law Journal 95

Applicant:

MS KNAUS

Respondent:

MR KNAUS

File Number:

MLC 7826 of 2010

Judgment of:

Riethmuller FM

Hearing date:

25 October 2010

Date of Last Submission:

1 November 2010

Delivered at:

Melbourne

Delivered on:

11 November 2010

REPRESENTATION

Counsel for the Applicant:

Ms Swart of Counsel

Solicitors for the Applicant:

Rudstein Kron Lawyers

Counsel for the Respondent:

Mr C. Nehmy

Solicitors for the Respondent:

Barbayannis Lawyers

ORDERS

Leave be granted for the solicitors to photocopy Mr M’s notes.

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

FEDERAL MAGISTRATES
COURT OF AUSTRALIA
AT MELBOURNE

MLC 7826 of 2010

MS KNAUS

Applicant

And

MR KNAUS

Respondent

REASONS FOR JUDGMENT

In this case, a subpoena was issued to a psychologist, Mr M, seeking copies of notes and records with respect to his dealings with the parties. In response, Mr M objected to the production of his notes.
In the subpoenaed records of Dr K, the wife’s general practitioner, there is a letter from Mr M which the husband argues should also be the subject of privilege.

Background

The parties in these proceedings commenced a relationship in 2002, marrying in 2005 and separating in 2010. They have two daughters, aged four and two respectively. The wife seeks orders with respect to financial matters, spousal maintenance, and children’s issues. The husband also seeks orders with respect to children’s issues and the dismissal of the wife’s application with respect to financial matters and spousal maintenance.
The material filed by the parties raises serious issues with respect to their mental health, family violence, and behaviours that will be significant in assessing the appropriate care arrangements for the children. Procedural orders in the proceedings have already provided for psychiatric assessments of the parties, a family report, and the appointment of an Independent Children’s Lawyer. Legal Aid Victoria has declined to appoint an Independent Children’s Lawyer (although,…

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 KNAUS and KNAUS

Details

AGLC: KNAUS and KNAUS [2010] FMCAfam 1370
Case: [2010] FMCAfam 1370
Decision Date

CaseChat Overview and Summary

The parties involved in this case are KNAUS and KNAUS. The dispute is related to evidence and the application of the Evidence Act, specifically concerning the admissibility of relevant evidence. This case was heard in a court that has jurisdiction over family law matters. The primary legal issue before the court was whether the common law rules of evidence had been entirely replaced by the Evidence Act, and if not, whether the common law exclusion rules could still be applied. The court was also required to determine whether the parties could inspect the file of Mr M and if they could provide that material to family report writers or other experts giving evidence in the case.

The court found that the common law rules of evidence had not been entirely replaced by the Evidence Act, as it is not a Code. However, much of the common law on the issues of evidence had been superseded by the Act. Specifically, section 56(1) of the Evidence Act provides that evidence that is relevant in a proceeding is admissible in the proceeding, unless otherwise provided by the Act. This section overrides the common law exclusion rules, as demonstrated in cases such as Telstra Corporation Limited v Australis Media Holdings (No 2) and EI Dupont de Nemours & Co v Imperial Chemical Industries PLC. The court granted the parties leave to inspect the file of Mr M, but did not allow them to provide that material to family report writers or other experts without further orders. This decision was made to ensure that the limited evidence of Mr M that could be adduced in accordance with section 131 of the Evidence Act was the only material passed on to other experts.

In conclusion, the court determined that while the Evidence Act has superseded much of the common law on the issues of evidence, the common law rules have not been entirely replaced. The court granted the parties leave to inspect the file of Mr M, but did not allow them to provide that material to family report writers or other experts without further orders. The court's decision was based on the need to ensure that the limited evidence of Mr M that could be adduced in accordance with section 131 of the Evidence Act was the only material passed on to other experts. This case serves as a reminder that the Evidence Act has not entirely replaced the common law rules of evidence, and that the admissibility of evidence must still be determined in accordance with the provisions of the Act and relevant case law.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

The common law rules of evidence have not been entirely replaced by the Evidence Act, as it is not a Code. However, much of the common law on the issues of evidence has been superseded by the Act. Significantly, s.56(1) provides:56. Relevant evidence to be admissible(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. This section is pivotal as it overrides the common law exclusion rules: see Telstra Corporation Limited v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 at 349 per McLelland CJ and EI Dupont de Nemours & Co v Imperial Chemical Industries PLC (2002) FCA 230 at [46]. As a result, the common law rules on this issue no longer apply. In the circumstances, I will grant the parties leave to inspect the file of Mr M. At this stage I do not propose to allow the parties to provide that material to family report writers or other experts giving evidence in the case without further orders so as to ensure that the limited evidence of Mr M that may be able to be adduced in accordance with s.131 of the Evidence Act is the only material passed on to other experts.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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