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Merrill & Burt

Merrill & Burt

Case [2015] FamCA 159 13 March 2015

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FAMILY COURT OF AUSTRALIA

MERRILL & BURT

[2015] FamCA 159

FAMILY LAW – PROCESS AND PROCEDURE – inspection of documents – urgent application for spousal maintenance – subpoenas – all outstanding applications adjourned

Evidence Act1995 (Cth)
Family Law Act 1975 (Cth)

Baker v Campbell(1983) 153 CLR 52
Chapman and Chapman (1979) FLC 90-671
Feinster & Feinster and Anor [2006] FamCA 232
Goldy & Goldy(No 2)[2011] FamCA 418
Hatton v Attorney-General of the Commonwealth of Australia [2000] FamCA 892; (2000) FLC 93-038
Hutchings & Clarke[1993] FamCA 22; (1993) FLC 92-373
Mann v. Carnell [1999] HCA 66; (1999) 201 CLR 1
National Employers Mutual General Association Ltd v Waind & Hill(1978) 1 NSWLR 372
R v Bell ex parte Lees [1980] HCA 26; (1980) 146 CLR 141
R v Young[1999] NSWCCA 166; (1999) 46 NSWLR 681
Redman and Redman (1987) FLC 91-805
Sankey & Whitlam[1978] HCA 43; (1978) 142 CLR 1
Spotless Group Ltd & Ors v Premier Building & Consulting Group Pty Ltd [2006] VSCA 20
Williamson and Williamson (1978) FLC 90-575
Zarrow v Australian Securities Commission(1992) 34 FCR 427

APPLICANT:

Ms Merrill

RESPONDENT:

Mr Burt

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

MLC

9912

2013

DATE DELIVERED:

13 March 2015

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Melbourne

JUDGMENT OF:

Cronin J

HEARING DATE:

12 March 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Mawson Qc With Mr Weil

SOLICITOR FOR THE APPLICANT:

Kennedy Partners

COUNSEL FOR THE RESPONDENT:

Mr Efron

SOLICITOR FOR THE RESPONDENT:

Efron & Associates

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Eidelsen

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Victoria Legal Aid

Orders

That the objection by Ms Merrill to the release and inspection of the documents produced by Dr H is upheld.
That the subpoena to Dr H is set aside.
All documents produced by Dr H are to be forthwith returned to him.
The oral application by Mr Burt for urgent spousal maintenance is dismissed.
That all outstanding applications (other than the objection to the subpoena to Dr I) are adjourned to the Judicial Duty List at 10.00am on 5 May 2015.
For the purposes of the return date, Mr Burt file and serve any further material (including any amended application for orders) that he intends to rely upon by no later than 4.00pm on 30 March 2015.
That Ms Merrill file and serve any material in reply to that filed by Mr Burt by no later than 4.00pm on Monday 20 April 2015.
That the Independent Children’s Lawyer is excused from attending at the next hearing (but the parties are to serve upon the Independent Children’s Lawyer any material in the foregoing paragraphs).
That in the same time periods referred to, each party file and serve on the other an affidavit setting out the documents referred to in the respective applications to date in which that party indicates that they no longer have that particular document in their power, possession or control and…

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 Merrill & Burt

Details

AGLC: Merrill & Burt [2015] FamCA 159
Case: [2015] FamCA 159
Decision Date: 13 March 2015

CaseChat Overview and Summary

In the matter of *Merrill & Burt*, Cronin J considered an objection by Ms Merrill to the release and inspection of documents produced by Dr H, which led to the setting aside of a subpoena to Dr H and the return of the documents. The court also addressed an oral application by Mr Burt for urgent spousal maintenance, which was dismissed.

The primary legal issues before the court were the validity of the objection to the subpoena and the appropriateness of granting urgent spousal maintenance. The court was also required to manage the ongoing proceedings, including the filing and service of further material by the parties and the Independent Children’s Lawyer's attendance at future hearings.

Cronin J upheld Ms Merrill's objection to the release of documents from Dr H, finding that the subpoena should be set aside and the documents returned. The court dismissed Mr Burt's application for urgent spousal maintenance. The proceedings were adjourned, with specific timelines set for the parties to file and serve further evidence and affidavits concerning documents no longer within their control. The court also made directions regarding a separate subpoena to Dr I and the process for any applications for costs.

Orders

Orders of the court

That the objection by Ms Merrill to the release and inspection of the documents produced by Dr H is upheld.

That the subpoena to Dr H is set aside.

All documents produced by Dr H are to be forthwith returned to him.

The oral application by Mr Burt for urgent spousal maintenance is dismissed.

That all outstanding applications (other than the objection to the subpoena to Dr I) are adjourned to the Judicial Duty List at 10.00am on 5 May 2015.

For the purposes of the return date, Mr Burt file and serve any further material (including any amended application for orders) that he intends to rely upon by no later than 4.00pm on 30 March 2015.

That Ms Merrill file and serve any material in reply to that filed by Mr Burt by no later than 4.00pm on Monday 20 April 2015.

That the Independent Children’s Lawyer is excused from attending at the next hearing (but the parties are to serve upon the Independent Children’s Lawyer any material in the foregoing paragraphs).

That in the same time periods referred to, each party file and serve on the other an affidavit setting out the documents referred to in the respective applications to date in which that party indicates that they no longer have that particular document in their power, possession or control and if not within that parties’ power, possession or control, why not.

10.

That the application for the determination of the objection to the subpoena addressed to Dr I be fixed on a date to be requested by Mr Burt after giving Dr I and her legal practitioners 30 days notice of his intention to proceed but otherwise, any documents produced by Dr I remain within the Registry and not be released for inspection.

11.

That should any party seek costs arising out of these orders, such application be made by written submission and filed and served by no later than 13 April 2015 with such submission being endorsed with the fact that it has been so served on the other party and any recipient of such submission have until 27 April 2015 to file and serve any response and such response be endorsed with the fact that it has been so served on the other party and upon receipt of any such application for costs, it or they be determined in chambers.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Merrill & Burt [2015] FamCA 159

Most Recent Citation

Kenley Mair and Grieves & Ors [2022] FCWA 163

Cases citing this decision · 4 of 4 shown

Kenley Mair and Grieves & Ors
[2022] FCWA 163

…rney-General of Commonwealth of Australia & Ors (2000) FLC 93-038 Kyrkos & Malkin [2020] FamCA 649 Mandic v Phillis (2005) 225 ALR 760 Merrill & Burt [2015] FamCA 159 National Employers’ Mutual General Association Ltd v Waind and Hill (1978) 1 NSWLR 372 Prefumo v Bradley [2011] WASC 251 R v Young (1999) 46 NSWLR 68…
Chrystie & Dellas
[2021] FamCA 628 Para 19

…Harman in Jermyn & Carling (2012) FMCAfam 814 with approval. The mother in this case relies on statements made by Cronin J in Merrill & Burt [2015] FamCA 159. At [38] His Honour quotes what Spigelman CJ said in R v Young at [93] (set out above) and then Cronin J goes on to say: The general public interest in confi…
HARDY & LEVESQUE
[2019] FCCA 377 Para 7

…en are at risk such that their best interests would be served by breaking the confidentiality of the therapeutic relationship [16] . [15] [2015] FamCA 159. [16] Ibid., at [39].…
Choat and Grendel
[2018] FamCA 579 Para 15

…es Judge Harman in Jermyn & Carling (2012) FMCAfam 814 with approval. The mother in this case relies on statements made by Cronin J in Merrill & Burt [2015] FamCA 159. At [38] His Honour quotes what Spigelman CJ said in R v Young at [93] (set out above) and then Cronin J goes on to say: The general public interest…

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Cases cited in this decision · 11 of 11 shown

Goldy & Goldy (No 2)
[2011] FamCA 418 Para 4

…In this Court, there have been cases where Public Interest Immunity has been considered. In Goldy & Goldy (No 2) [2011] FamCA 418 in which a party sought to subpoena the “ Kids Help Line ”, Dawe J after considering considered Public Interest Immunity, upheld an objection to a subpoena. Her Honour said the Court sho…
Feinster & Feinster and Anor
[2006] FamCA 232 Para 5

…In Feinster & Feinster and Anor [2006] FamCA 232, Watts J held that Public Interest Immunity differed from privilege because it operated for the benefit of the public interest in general and did not protect private relationships. That was about the issue of a subpoena seeking production of the issuer’s own medical…
R v Nguyen
[2006] VSCA 20 Para 1

…espondent did not address the point. Mr Mawson for the applicant, pointed to Spotless Group Ltd & Ors v Premier Building & Consulting Group Pty Ltd [2006] VSCA 20, a decision of the Victorian Court of Appeal. That was case about the provision of advice which was subject to legal professional privilege to a third…
Hatton v Attorney-General of Commonwealth of Australia & Ors
[2000] FamCA 892 Para 3

…In respect of the second step, guidance can be found in Hatton v Attorney-General of the Commonwealth of Australia [2000] FamCA 892; (2000) FLC 93-038 where the Full Court gave examples of when it is proper to set aside a subpoena. Whilst a number of the examples might be said to be relevant here, the ones argued w…
Mann v Carnell
[1999] HCA 66 Para 2

…crutiny. To discuss her legal advice, if that was what she was doing, was not inconsistent with the maintenance of the privilege (see Mann v. Carnell [1999] HCA 66; (1999) 201 CLR 1)…
R v Young
[1999] NSWCCA 166 Para 8

…In R v Young [1999] NSWCCA 166; (1999) 46 NSWLR 681 Spigelman CJ observed that the “categories” were not closed and went on to discuss the role of the courts. His Honour said: The recognition of a new category of privilege requires the formulation of public policy by the courts, within the confines of the proper rol…
Australian Securities Commission v Zarro
[1992] FCA 605 Para 2

…the discretion to examine the documents and see whether they support a claim for public interest immunity ( Zarrow v Australian Securities Commission (1992) 34 FCR 427 at [435]) but the respondent did not request that occur. Having regard to the annexure the affidavit of the applicant setting out the views of the do…
Baker v Campbell
[1983] HCA 39

…Baker v Campbell (1983) 153 CLR 52 Chapman and Chapman (1979) FLC 90-671 Feinster & Feinster and Anor [2006] FamCA 232 Goldy & Goldy (No 2) [2011] FamCA 418 Hatton v Attorney-General of the Commonwealth of Australia [2000] FamCA 892; (2000) FLC 93-038 Hutchings & Clarke [1993] FamCA 22; (1993) FLC 92-373 Mann v. Car…
R v Bell; ex parte Lees
[1980] HCA 26 Para 3

…privileges have been overridden by the welfare principle such as in Hutchings & Clarke [1993] FamCA 22; (1993) FLC 92-373 and R v Bell ex parte Lees [1980] HCA 26; (1980) 146 CLR 141. The Independent Children’s Lawyer submitted that the protection of the mother’s health was in the best interests of the children…
Sankey v Whitlam
[1978] HCA 43 Para 1

…In Sankey & Whitlam [1978] HCA 43; (1978) 142 CLR 1 at [39] Gibbs ACJ said of two broad categories of public interest immunity, an objection could be made to the production of a document if it would be against the public interest to disclose its contents or because it belonged to a class of documents which in th…
Hutchings & Clarke
[1993] FAMCA 22 Para 3

…Examples can be shown where common law privileges have been overridden by the welfare principle such as in Hutchings & Clarke [1993] FamCA 22; (1993) FLC 92-373 and R v Bell ex parte Lees [1980] HCA 26; (1980) 146 CLR 141. The Independent Children’s Lawyer submitted that the protection of the mother’s health was i…

Legislation cited in this decision · 2

Evidence Act 1995 (Cth)
1 mention (from Para 5)
Family Law Act 1975 (Cth)
1 mention (from Para 7)