Leventis & Leventis (No 6)
[2023] FedCFamC1F 351
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Leventis & Leventis (No 6) [2023] FedCFamC1F 351
File number MLC 7710 of 2018 Judgment of WILSON J Date of judgment 9 May 2023 Catchwords FAMILY LAW – SUBPOENA – recipient of subpoena resisting production of documents – notes addressed issues raised in non-reportable therapy – s 10E(1) applicable – exemption under s10E(2) not made out – application abandoned – costs ordered. Legislation Family Law Act 1975 (Cth) ss 10E(1) and 10E(2)
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.35
Cases cited Slea Pty Ltd v Connective Services Pty Ltd (No 9) [2022] VSC 136 Division Division 1 First Instance Number of paragraphs 9 Date of last submissions 9 May 2023 Date of hearing 9 May 2023 Place Melbourne Counsel for the applicant Mr L. Glick KC with Dr E. Kelly Solicitors for the applicant Lander & Rogers Solicitors for the first respondent Mr E. Vadarlis with Mr J. Forrest Counsel for the second and third respondents Mr S. K. Wilson KC with Mr P. Panayi Solicitors for the second and third respondents Pauline Madden Conveyancing & Legal ORDERS
MLC 7710 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN MS LEVENTIS
Applicant
AND MR LEVENTIS
First respondent
MR B LEVENTIS
Second respondent
MS C LEVENTIS
Third respondent
order made by
WILSON J
DATE OF ORDER
9 MAY 2023
THE COURT ORDERS THAT
1.The father pay Dr O’s fee of $500 for her appearance before me this day.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
WILSON J
These reasons explain why I made orders for the husband to pay costs in the fixed amount of $500 following the abandonment of the husband’s application for the production of notes the subject of a subpoena addressed to Dr O dated 4 May 2023.
The subpoena called for production of the following –
1. A copy of this subpoena.
2. Your clinical notes of your meetings and communications with:
(a) [Ms Leventis];
(b) [Mr Leventis];
(c) [X];
(d) [Y].
Dr O attended court on the eighth day of the trial and was interposed during the cross-examination of the applicant wife.
Mr Vadarlis, solicitor appearing for the husband, asked Dr O whether she was willing to produce the documents that were the subject of the subpoena. Dr O said she was not. She said that her role was as a therapeutic counsellor who undertook non-reportable therapy and Dr O took the view that notes of her therapy sessions were immune from production. Mr Vadarlis, giving evidence from the Bar table, told me he agreed to S Psychologists being retained on the basis that the therapy was not non-reportable.
At my request for him to develop the legal basis of the husband’s application for Dr O’s notes, Mr Vadarlis began with the terms of the consent order made on 13 February 2023. It was as follows –
UPON THIS PROCEEDING coming before me for trial on 6, ,7 8, 9 and 13 February 2023 AND UPON HEARING Mr L. Glick One of His Majesty’s Counsel with Dr E. Kelly of counsel for the applicant, [Dr P] of counsel for the first respondent and [Mr Q] One of His Majesty’s Counsel with [Ms R] of counsel for the second and third respondent I ORDER BY CONSENT that the parties forthwith must appoint such appropriately qualified family therapist as may be recommended by [Mr T] for the purpose of family therapy and must do all acts required to ensure that they and the children participate in the family therapy process, including (without being limited) to complying with all reasonable directions of the therapist as to the course of therapy, at the shared expense of the applicant and first respondent and with a joint letter of instructions to be settled forthwith.
Mr Vadarlis submitted that nothing in the consent orders made 13 February 2023 indicated that the notes taken by Dr O were not to be available for production. He said he wanted to know what was exchanged between Dr O and the four persons in respect of whom the notes were sought. Mr Vadarlis submitted that the general prohibition in s 10E(1) of the Family Law Act on the admissibility of evidence given by a family counsellor was ameliorated by s 10E(2) of the Family Law Act. I asked Mr Vadarlis how he submitted that s 10E(1) was inapplicable. He said he did not know what the notes said so he was unable to develop submissions about s 10E(1) or 10(2).
Mr Glick KC submitted that the Hon Justice Robson of the Supreme Court of Victoria, a justice extremely well-versed in evidentiary issues, had pronounced on a similar matter in Slea Pty Ltd v Connective Services Pty Ltd (No 9),[1] and that Dr O should not be required to produce her notes.
[1] [2022] VSC 136.
Mr Vadarlis eventually abandoned his client’s application for the production of Dr O’s notes. That was done after I raised with Mr Vadarlis that it was difficult to see how Dr O’s notes assumed the importance Mr Vadarlis said they assumed having regard to the application for their production emerging on the eighth day of the trial.
Dr O said her costs for the appearance before me were $2,200 for the purposes of Rule 6.35 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. She was out of the witness box by 10:15am so it seemed to me that $2,200 was excessive. I ordered that the father pay Dr O’s fee of $500 for her appearance before me this day.
I certify that the preceding nine (9) numbered paragraphs are a true copy of the ex tempore reasons for judgment of the Honourable Justice Wilson. Associate:
Dated: 9 May 2023
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