Knill and Beckett - [2019] FamCA 591

FAMILY COURT OF AUSTRALIA

KNILL & BECKETT

[2019] FamCA 591

FAMILY LAW – PRACTICE AND PROCEDURE

A v Z [2007] NSWSC 899
Brand v Digi-tech Australia [2001] NSWSC 425

APPLICANT:

Mr Knill

RESPONDENT:

Ms Beckett

INDEPENDENT CHILDREN’S LAWYER:

Mills Oakley

FILE NUMBER:

CAC

712

2016

DATE DELIVERED:

22 August 2019

PLACE DELIVERED:

Canberra

PLACE HEARD:

Canberra

JUDGMENT OF:

Gill J

HEARING DATE:

22 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Howard

SOLICITOR FOR THE APPLICANT:

Neilan Stramandinoli Family Law

COUNSEL FOR THE RESPONDENT:

Mr Haddock

SOLICITOR FOR THE RESPONDENT:

Phelps Reid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mrs Evans

Orders

The Father may access immediate access to the material produced on subpoena by the Suburb C Family Practice in relation to the subpoena issued on 29 July 2019 and absent any further application the Independent Children’s Lawyer and the Mother may exercise access to that material (other than material in the envelope marked “not to be opened without further order of the Court”) from 11 am today.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Knill & Beckett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 712 of 2016

Mr Knill

Applicant

And

Ms Beckett

Respondent

EX TEMPORE REASONS FOR JUDGMENT

This matter concerns a subpoena directed to the Suburb C Family Practice filed on 29 July 2019. That subpoena was directed to any medical records held by that practice in relation to the child the subject of proceedings B, her Father who attends that practice and her Mother who does not attend that practice.
Notice of Objection was filed by the Father on 9 August 2019, which was before the subpoena was returnable, being returnable on 12 August 2019. The parties argued their objection before the Registrar on 19 August 2019. She then made orders which provided initially for the Independent Children’s Lawyer to inspect the material and to extract matters which she indicated were relevant.
The Father promptly, by an Application in a Case on 21 August 2019, sought a review of the Registrar's decision. The character of that review is that it is a fresh determination of the matter. A partial stay of the orders was granted on 21 August 2019.
Two objections were mounted by the Father. The first is that the material produced by the Suburb C Family Practice went beyond the scope of the subpoena. The subpoena sought material generally from the ending of the substantive trial in this matter, being from…

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 Knill and Beckett

Details

AGLC: Knill and Beckett [2019] FamCA 591
Case: [2019] FamCA 591
Decision Date: 22 August 2019

CaseChat Overview and Summary

In *Knill and Beckett*, heard by Gill J, the dispute concerned access to material produced by a third-party medical practice pursuant to a subpoena. The Father sought immediate access to this material, while the Independent Children's Lawyer and the Mother also sought access, albeit with certain limitations.

The central legal issue before the Court was whether the Father should be granted immediate access to the subpoenaed documents, and under what conditions the Independent Children's Lawyer and the Mother could access the same material. The Court was required to consider the appropriate balance between the parties' interests in accessing relevant evidence and the protection of sensitive information.

Gill J ordered that the Father was entitled to immediate access to the material produced by the Suburb C Family Practice. Furthermore, absent any further application, the Independent Children's Lawyer and the Mother were permitted to access the same material, with the exception of documents contained within an envelope specifically marked "not to be opened without further order of the Court," commencing from 11 am on the day of the order.

Orders

Orders of the court

The Father may access immediate access to the material produced on subpoena by the Suburb C Family Practice in relation to the subpoena issued on 29 July 2019 and absent any further application the Independent Children’s Lawyer and the Mother may exercise access to that material (other than material in the envelope marked “not to be opened without further order of the Court”) from 11 am today.

Note: The form of the order is subject to the entry of the order in the Court’s records.

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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