LEROUX & LEROUX - [2016] FamCA 255

FAMILY COURT OF AUSTRALIA

LEROUX & LEROUX

[2016] FamCA 255

FAMILY LAW – PRACTICE AND PROCEDURE – OBJECTION TO SUBPOENA – Where father has issued subpoena to children’s treating therapist and Child Protection Authorities – Where the children’s treating therapist and Independent Children’s Lawyer object – Where parts of subpoena are struck out.

Family Law Act 1975 (Cth)
APPLICANT:	Mr Leroux

FIRST RESPONDENT:

SECOND RESPONDENT:

THIRD RESPONDENT:

Ms Leroux

Ms Digby

Mr Digby

INDEPENDENT CHILDREN’S LAWYER:

Mr P Fitzgerald

FILE NUMBER:

HBC

909

2014

DATE DELIVERED:

2 March 2016

PLACE DELIVERED:

Hobart

PLACE HEARD:

Hobart

JUDGMENT OF:

Benjamin J

HEARING DATE:

2 March 2016

REPRESENTATION

COUNSEL FOR THE APPLICANT:	In Person
COUNSEL FOR THE FIRST RESPONDENT:	Mr R Blissenden

SOLICITOR FOR THE FIRST

RESPONDENT:

COUNSEL FOR THE SECOND
RESPONDENT:

COUNSEL FOR THE THIRD RESPONDENT:

COUNSEL FOR THE INDEPENDENT
CHILDREN’S LAWYER:

SOLICITOR FOR THE INDEPENDENT
CHILDREN’S LAWYER

Blissenden Lawyers

In person

Mr Fitzgerald

Legal Aid Commission of Tasmania

Orders

The subpoena filed 9 November 2015 be adjourned for the production of documents before a Registrar of this Court on Wednesday 16 March 2016 at 9.30am.
Paragraphs 2, 3, 8 & 9 of the subpoena be and are struck out.

IT IS FURTHER ORDERED

Pursuant to s 118 of the Family Law Act 1975 (Cth), the contravention application filed by the applicant on 18 January 2016 is summarily dismissed.
Costs of the contravention application be reserved.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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

FAMILY COURT OF AUSTRALIA AT HOBART

FILE NUMBER: HBC 909 of 2014

Mr Leroux

Applicant

And

Ms Leroux

Respondent

And

Ms Digby
Second Respondent

And

Mr Digby
Third Respondent

And

Independent Children’s Lawyer

EX TEMPORE REASONS FOR JUDGMENT

(it is implicit that these reasons include the exchanges between the bench and parties during this interlocutory application)

This is a proceeding relating to a subpoena issued by Mr Leroux to Ms B, who was the treating psychologist for the child D, who recently celebrated her 14^th birthday, and the child E, who turned 12 in December last.
The objection is in relation to producing file notes and documents relating to the children, of the first part, and the second part in relation to correspondence between Ms Leroux and Child Protection Authorities.
A notice of objection was filed in relation to those parts of the subpoena, particularly those contained in paragraphs 2, 3, 8 and 9.
Ms B attended today, and an email from Ms B, dated 2 March 2016, to the Independent Children’s Lawyer advised:-[1]
With further thought, I reconsidered my position on access to my clinical notes for both children. Despite not objecting initially, I am of the opinion that the children’s…

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

AGLC: LEROUX & LEROUX [2016] FamCA 255
Case: [2016] FamCA 255
Decision Date: 2 March 2016

CaseChat Overview and Summary

In *Leroux & Leroux*, Benjamin J of the Family Court of Australia considered an application by the applicant concerning alleged contraventions of court orders and a related subpoena. The applicant sought to have the respondent found in contravention of parenting orders, while the respondent had issued a subpoena seeking production of documents.

The primary legal issues before the court were whether the respondent had contravened the parenting orders as alleged by the applicant, and the extent to which the subpoena issued by the respondent was valid and enforceable. The court was also required to determine the appropriate orders regarding the subpoena and the contravention application.

Benjamin J dismissed the applicant's contravention application summarily pursuant to section 118 of the *Family Law Act 1975* (Cth). The court also struck out paragraphs 2, 3, 8, and 9 of the subpoena, while adjourning the production of the remaining documents before a Registrar. The costs of the contravention application were reserved.

Orders

Orders of the court

The subpoena filed 9 November 2015 be adjourned for the production of documents before a Registrar of this Court on Wednesday 16 March 2016 at 9.30am.

Paragraphs 2, 3, 8 & 9 of the subpoena be and are struck out.

IT IS FURTHER ORDERED

Pursuant to s 118 of the Family Law Act 1975 (Cth), the contravention application filed by the applicant on 18 January 2016 is summarily dismissed.

Costs of the contravention application be reserved.

IT IS CERTIFIED

Pursuant to Rule 19.50 of the Family Law Rules 2004 (Cth) it was reasonable to engage counsel to attend.

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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