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,…

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] FedCFamC1F 351
Decision Date

CaseChat Overview and Summary

The case of Leventis & Leventis (No 6) involved Ms Leventis, the applicant, and Mr Leventis, the first respondent, with Mr B Leventis and Ms C Leventis being the second and third respondents respectively. The primary dispute in this case centred around the subpoena served on Dr O, a therapist, demanding the production of her clinical notes. These notes pertained to her meetings and communications with Ms Leventis, Mr Leventis, and two other individuals, X and Y. The legal issues that came before the court were whether the notes should be produced under the Family Law Act 1975, and if so, whether there were any exemptions applicable under section 10E(2) of the Act.

The court examined the submissions made by Mr Vadarlis, the solicitor for the husband, who argued that the consent orders dated 13 February 2023 did not indicate that Dr O’s notes were not to be available for production. Mr Vadarlis sought to understand what was exchanged between Dr O and the four individuals involved. The court also heard from Mr Glick KC, who referred to a similar case, Slea Pty Ltd v Connective Services Pty Ltd (No 9), where Justice Robson had ruled against the requirement for the production of similar notes. Ultimately, Mr Vadarlis abandoned his client's application for the production of Dr O's notes. The court found that Dr O, who had expressed her unwillingness to produce the documents due to her role as a therapeutic counsellor conducting non-reportable therapy, was correct in her stance. The exemption under section 10E(2) of the Family Law Act was deemed not to apply in this case.

In light of the abandonment of the application for the production of Dr O's notes and the subsequent refusal to produce them, the court ordered that the husband pay Dr O's fee of $500 for her appearance before the court on that day. The court reasoned that while Dr O had claimed her costs for the appearance were $2,200 under Rule 6.35 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021, the amount seemed excessive given that she was out of the witness box by 10:15 am. This decision highlights the court's careful consideration of the balance between the need for therapeutic confidentiality and the demands of legal proceedings.

Orders