Mark and Messina - [2009] FamCA 1021

FAMILY COURT OF AUSTRALIA

MARK & MESSINA

[2009] FamCA 1021

FAMILY LAW – EVIDENCE – Waiver of privilege – Common law provisions apply – Solicitor’s file produced pursuant to subpoena

Evidence Act 1995 (Cth)
Family Law Act 1975 (Cth)

Mann v Carnell [1999] HCA 66
Stamp and Stamp (2007) FLC 93-314

APPLICANT:

Mr Mark

RESPONDENT:

Ms Messina

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

11622

2007

DATE DELIVERED:

27 OCTOBER 2009

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

THE HONOURABLE JUSTICE CRONIN

HEARING DATE:

27 OCTOBER 2009

REPRESENTATION

COUNSEL FOR THE APPLICANT:

MR ROBINSON

SOLICITOR FOR THE APPLICANT:

BARRY & NILSSON LAWYERS

COUNSEL FOR THE RESPONDENT:

MR BARTFELD QC

SOLICITOR FOR THE RESPONDENT:

NICHOLES FAMILY LAWYERS

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

MS FOSTER

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

SCHETZER CONSTANTINOU

Orders

That Mr John Redman of Gibson and Gibson Lawyers of Perth make available for inspection and copying all memoranda, file notes and correspondence between Gibson and Gibson and the wife concerning the wife’s discussions with him (or the firm) about the approach to be taken by the wife in relation to the relationship between C and the father.
That any issue of costs arising out of these proceedings be a matter for written submissions to be provided and filed and served no later than 4.00pm on 13 November 2009.
That any reply thereto be filed no later than 4.00pm on 20 November 2009.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 it was reasonable to engage counsel to attend.

IT IS NOTED that publication of this judgment under the pseudonym Mark & Messina is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 11622 of 2007

MR MARK

Applicant

And

MS MESSINA

Respondent

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

On the return of a subpoena directed to the mother’s former solicitors to produce the entirety of their file, objection to both compliance and release for inspection was raised by the mother. The mother claimed legal professional privilege. The father claimed that the mother had waived the privilege.
The argument of the mother also raised the issue of whether the subpoena was a “fishing” expedition for discovery purposes.
This parenting dispute is listed for final hearing in November 2009.
By way of background, the parties had a relationship between 2005 and 2007 in Perth from which C was born in January 2007. In May 2007, the parties separated.
The father’s substantive case is that he saw the child after separation with some difficulties. On the other hand, the mother complains about the father’s conduct.
In August 2007, the mother left Australia to live in Chile which triggered an application under the Hague Convention. That hearing determined in favour of the mother in the Chilean courts. An appeal against the Chilean court order was dismissed in December 2008.
The father’s case is that thereafter there was sporadic email communication between…

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 Mark and Messina

Details

AGLC: Mark and Messina [2009] FamCA 1021
Case: [2009] FamCA 1021
Decision Date: 27 OCTOBER 2009

CaseChat Overview and Summary

In the matter of Mark and Messina, Justice Cronin of the Family Court of Australia considered an application concerning the disclosure of documents. The dispute centred on whether certain memoranda, file notes, and correspondence between the wife's solicitors, Gibson and Gibson Lawyers, and the wife herself, relating to discussions about the wife's approach to her relationship with the father of a child, C, should be made available for inspection and copying.

The primary legal issue before the Court was the discoverability of these documents. Specifically, the Court had to determine if the documents sought were relevant to the proceedings and if any privilege, such as legal professional privilege, attached to them, thereby potentially exempting them from disclosure. The Court was tasked with balancing the need for full and frank disclosure in family law proceedings against the protection of confidential communications between a client and their legal representatives.

Justice Cronin ordered that Mr John Redman of Gibson and Gibson Lawyers make available for inspection and copying all memoranda, file notes, and correspondence between the firm and the wife concerning her discussions with the firm about the approach to be taken by the wife in relation to the relationship between C and the father. The Court also directed that any issues regarding costs arising from these proceedings be determined by written submissions, with specific deadlines set for the filing and service of these submissions and any replies. Furthermore, the Court certified that it was reasonable to engage counsel to attend the proceedings, pursuant to Order 19.50 of the Family Law Rules 2004.

Orders

Orders of the court

That Mr John Redman of Gibson and Gibson Lawyers of Perth make available for inspection and copying all memoranda, file notes and correspondence between Gibson and Gibson and the wife concerning the wife’s discussions with him (or the firm) about the approach to be taken by the wife in relation to the relationship between C and the father.

That any issue of costs arising out of these proceedings be a matter for written submissions to be provided and filed and served no later than 4.00pm on 13 November 2009.

That any reply thereto be filed no later than 4.00pm on 20 November 2009.

IT IS CERTIFIED:

That pursuant to Order 19.50 of the Family Law Rules 2004 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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