McDougall and McDougall - [2017] FCCA 2907

FEDERAL CIRCUIT COURT OF AUSTRALIA

MCDOUGALL & MCDOUGALL

[2017] FCCA 2907

Catchwords:
FAMILY LAW – Practice and procedure – subpoena issued to family counselling agency – confidentiality and inadmissibility – abuse of process – subpoena struck out.

Legislation:

Family Law Act 1975, ss.13C, 10D, 10E, 10C, 10B, 69ZT, 10H, 10J, 60I, 60J, 65F
Children and Young Persons (Care and Protection) Act 1998 (NSW)
Evidence Act 1995, Part 3.2 Division 1, Division 2, ss.135, 136
Family Law (Family Dispute Resolution Practitioners) Regulations 2008, Regulation 25

Civil Dispute Resolution Act 2011

Cases cited:
Smirnov & Turova [2009] FMCAfam 1083
Trapp & Vonne [2009] FMCAfam 497
UnitingCare – Unifam Counselling & Mediation & Harkiss & Anor [2011] FamCAFC 159
Lukies v Ripley (No.2) (1994) 35 NSWLR 283
AWA Ltd v Daniels (t/a Deloitte Haskins and Sells), Rolfe J, 18 March 1992, (unreported)
R v. Baden-Clay [2013] QSC 351
R v Liddy (No.2) (2001) 79 SASR 401

Applicant:

MS MCDOUGALL

Respondent:

MR MCDOUGALL

File Number:

WOC 1171 of 2016

Judgment of:

Judge Harman

Hearing date:

26 October 2017

Date of Last Submission:

26 October 2017

Delivered at:

Wollongong

Delivered on:

26 October 2017

REPRESENTATION

Solicitors for the Applicant:

Mr Hartley of McNamara & Associates

Solicitors for the Respondent:

Mr Tobin of Johnston Tobin Solicitors

Counsel for the Independent Children’s Lawyer

Ms Ung of Legal Aid NSW Nowra Family Law

ORDERS

The matter is listed for Final Hearing before Judge Harman at 10.00am on 18 May 2018 and to continue until completion.
Decline to Order a Family Report.
Direct the Applicant to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 20 April 2018.
Direct the Respondent to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 20 April 2018.
The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.
Direct each party and the Independent Children’s Lawyer to file a Case Outline directly by email in word format to my Associate no later than close of business 11 May 2018, such Case Outline to incorporate:
(a)The material that is relied upon by that party or the Independent Children’s Lawyer, being one Affidavit per witness together with any Affidavit in reply;
(b)The material from which tender is to be made in that party or Independent Children’s Lawyer’s case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;
(c)A chronology of events;
(d)A draft trial plan (preferably agreed) to ensure the matter is contained to its allocated time (including 75 minutes for Judgment).
Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of…

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 McDougall and McDougall

Details

AGLC: McDougall and McDougall [2017] FCCA 2907
Case: [2017] FCCA 2907
Decision Date: 26 October 2017

CaseChat Overview and Summary

In the matter of McDougall and McDougall, Judge Harman presided over proceedings concerning family law. The dispute involved an application by the Applicant and Respondent, with an Independent Children’s Lawyer also participating. The court was tasked with determining the future arrangements for the parties and any children involved, as well as managing the procedural aspects of the case leading up to a final hearing.

The court was required to consider several legal issues, including whether to order a Family Report, the timelines for filing and serving affidavit material, and the preparation of case outlines. It also had to address the process for tendering evidence, the creation of a chronology of events, and the development of a draft trial plan to ensure the efficient use of allocated court time. Furthermore, the court needed to rule on the issuance and compliance with subpoenas, and the finalisation of interim orders based on terms of settlement.

Judge Harman declined to order a Family Report, instead directing the parties and the Independent Children’s Lawyer to file and serve all affidavit material by a specified date. The court also mandated the filing of case outlines, incorporating relied-upon material, documents for tender, a chronology, and a draft trial plan. Leave was granted for parties to resolve the matter by consent and have orders made in chambers. The court also stipulated strict timelines for the issuance and inspection of documents obtained via subpoena, indicating no time would be available for inspection during the hearing. Interim orders were made by consent in accordance with terms of settlement, and the subpoena addressed to the Proper Officer was struck out. Material produced by Anglicare was ordered to be returned to that service.

Orders

Orders of the court

The matter is listed for Final Hearing before Judge Harman at 10.00am on 18 May 2018 and to continue until completion.

Decline to Order a Family Report.

Direct the Applicant to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 20 April 2018.

Direct the Respondent to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 20 April 2018.

The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.

Direct each party and the Independent Children’s Lawyer to file a Case Outline directly by email in word format to my Associate no later than close of business 11 May 2018, such Case Outline to incorporate:

(a) The material that is relied upon by that party or the Independent Children’s Lawyer, being one Affidavit per witness together with any Affidavit in reply;

(b) The material from which tender is to be made in that party or Independent Children’s Lawyer’s case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;

(d) A draft trial plan (preferably agreed) to ensure the matter is contained to its allocated time (including 75 minutes for Judgment).

Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of orders being made in Chambers and hearing dates vacated.

Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issuing same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).

By consent further Interim Orders are made in accordance with the Terms of Settlement executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.

Direct the Independent Children’s Lawyer to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.

Strike out the subpoena addressed to the Proper Officer (omitted) filed 31 August 2017.

Direct that all material produced by Anglicare be returned to that service together with a copy of this Order.

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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