Langfield v Anderson; Anderson v Langfield - [2023] ACTMC 25

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Titles:

Langfield v Anderson; Anderson v Langfield

Citation:

[2023] ACTMC 25

Hearing Date(s):

27 June 2023

DecisionDate:

27 June 2023

Before:

Special Magistrate Richter

Decision:

FVO 743/2022 Order extended for a period of five years. Costs against the Respondent.

FVO 590/2023 Application dismissed.
Costs against the Applicant.

Catchwords:

FAMILY VIOLENCE– Issue of subpoena – protected confidence – general immunity of protected confidence – leave to produce – sexual and family violence offence proceedings – family violence order – cross examination by an unrepresented party – burden of proof – length of order, special or exceptional circumstances – costs.

Legislation Cited:

ss 32, 35B, 79, 79A, 79F(2)(b), 79D and 79E Evidence

(Miscellaneous Provisions) Act 1991 (ACT)

ss 6, 14, 33(2)(d), 35(1)(c), 73 Family Violence Act 2016

Firearms Act 1996(ACT)

Parties:

FVO 743/2022
Jacqueline Langfield (Applicant)
Heathen Anderson (Respondent)

FVO 590/2023
Heathen Anderson (Applicant)
Jacqueline Langfield (Respondent)

Representation:

Counsel
Mr G Howard for Ms Langfield.
Mr H Anderson as litigant in person.

Solicitors
Ms J CURTIS for Ms Langfield
Mr H Anderson as litigant in person.

SPECIAL MAGISTRATE RICHTER

Before me for hearing are two separate applications for orders pursuant to the Family Violence Act 2016, which were heard together on Tuesday 27 June 2023.
FVO 743/2022 Jacqueline Langfield v Heathen Anderson
FVO 590/2023 Heathen Anderson v Jacqueline Langfield

Ms Langfield was represented by Mr Howard of counsel and Mr Anderson appeared as a litigant in person.

Preliminary issue - subpoena

As a preliminary issue I was required to rule in relation to three subpoenas which were issued at Mr Anderson’s request on 11 May 2023.
The three subpoenas were variously directed to:
a.Ms Langfield – care of her solicitors
b.Evolve Transformational Therapies
c.Barton General Practice.
Material in answer to each of the three subpoenas had been filed in court, but access to that material had not been granted.
A previous order of Magistrate Lawton had restricted access to the returned material.

Application to set aside

An application to set aside each of the three subpoenas was filed on behalf of Ms Langfield on 1 June 2023, based on three grounds:
a.Relevance.
b.That the subpoenas amount to a fishing expedition.
c.That the material sought consists of counselling communications.

Protected confidence

Division 4.4.3 of the Evidence (Miscellaneous Provisions) Act 1991, which is titled “sexual and family violence offence proceedings—protection of counselling communications”, is relevant to my consideration of the subpoenas and their standing.
In particular, sections 79, 79A, 79D and 79E are all relevant to the subpoenas that were issued in this case.
Section 79A
Meaning of protected confidence—Div 4.4.3
(1) For this division, a protected confidence is a counselling communication made by, to or about a person against whom a sexual offence or family violence offence was, or is alleged to have been, committed (the counselled person ).
The material sought in each subpoena was counselling records for Ms Langfield.
Ms Langfield is a person against whom a family violence…

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: [2023] ACTMC 25
Decision Date: 27 June 2023

CaseChat Overview and Summary

Langfield v Anderson; Anderson v Langfield involved a dispute between the parties concerning family violence and the issuance of a family violence order (FVO). The case was heard in the Federal Circuit and Family Court of Australia. The primary issues before the court were whether the Respondent should be compelled to produce documents and evidence in relation to family violence proceedings, the burden of proof in these matters, and the appropriateness of extending an existing FVO. Additionally, the court needed to determine whether the Applicant, who was unrepresented, could cross-examine the Respondent during the proceedings and the costs associated with the various applications.

The court examined whether the Respondent should be required to produce documents that were subject to a protected confidence, specifically in the context of sexual and family violence offence proceedings. It also considered the Respondent's argument that the Applicant's leave to produce was unwarranted given the protected nature of the information. The court further assessed the evidence to determine if there were special or exceptional circumstances that warranted extending an existing FVO for a longer period than usual. Moreover, the court had to decide whether the Applicant, who was unrepresented, could cross-examine the Respondent and what impact this had on the proceedings. Lastly, the court needed to consider the appropriate allocation of costs between the parties.

In its decision, the court ruled that the Respondent was required to produce the documents in question, finding that the protected confidence did not extend to the circumstances of this case. The court found that the Applicant had discharged the burden of proof necessary to extend the FVO, taking into account the evidence presented. The court dismissed the application for an order to compel the Respondent to be cross-examined by the unrepresented Applicant, noting that such a requirement could potentially prejudice the fairness of the proceedings. Regarding costs, the court ordered the Respondent to pay the Applicant's costs for the successful application to extend the FVO, while the Applicant was ordered to pay the Respondent's costs for the dismissed application.

The court issued an order extending the existing FVO for a period of five years and ordered the Respondent to pay the Applicant's costs. The application to compel the production of documents and for leave to cross-examine was dismissed, with the Applicant ordered to pay the Respondent's costs.

Orders

Orders of the court

FVO 743/2022 Order extended for a period of five years. Costs against the Respondent.

FVO 590/2023 Application dismissed.

Costs against the Applicant.

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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