Millman & Millman (No 3) - [2021] FedCFamC1F 143

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Millman & Millman (No 3) [2021] FedCFamC1F 143

File number(s): ADC 30 of 2020

Judgment of: BERMAN J

Date of judgment: 20 October 2021

Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Objection to Subpoena – Where the wife caused a subpoena to issue to the husband’s general practitioner – Where the husband objected on the basis that the subpoena does not sufficiently identify the documents that are likely to be relevant to the proceedings – Where the documents have been produced – Where the husband’s mental health is a relevant issue in the proceedings – Where the documents are likely to be of apparent relevance – Where the wife has not embarked upon a fishing expedition – Objection dismissed.

Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.38

Cases cited:
Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98

Hatton v Attorney-General of Commonwealth of Australia (2000) FLC 93-038

X Pty Ltd & Ors & Merhi [2015] FamCA 622

Division: Division 1 First Instance

Number of paragraphs: 24

Date of hearing: 18 October 2021

Place: Adelaide

Counsel for the Applicant: Ms Lewis

Solicitor for the Applicant: Jacqui Ion Lawyers Pty Ltd

Counsel for the Respondents: Mr Dillon

Solicitor for the Respondents: Angela Ferdinandy
ORDERS

ADC 30 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:
MS MILLMAN

Applicant

AND:
MR MILLMAN

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 OCTOBER 2021

THE COURT ORDERS THAT:
1.The husband’s objection to the subpoena directed to Dr HH dated 28 September 2021 is dismissed.

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 the pseudonym Millman & Millman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION

Ms Millman (“the wife”) caused a subpoena to issue on 28 September 2021 seeking that Dr HH produce his complete file in relation to medical treatment rendered to Mr Millman (“the husband”) for the period 1 January 2010 to the current time.
The husband objects to the subpoena on the basis that it does not sufficiently identify the documents sought that are likely to be relevant to the proceedings. Further it is agreed that the personal private medical…

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 Millman & Millman (No 3)

Details

AGLC: Millman & Millman (No 3) [2021] FedCFamC1F 143
Case: [2021] FedCFamC1F 143
Decision Date: 20 October 2021

CaseChat Overview and Summary

Ms Millman applied for an order under section 121 of the Family Law Act 1975 (Cth) requiring Mr Millman to produce documents in the care of his general practitioner, Dr HH. Mr Millman objected to the subpoena on the basis that it did not sufficiently identify the documents that are likely to be relevant to the proceedings. The relevant issue in the proceedings was Mr Millman’s mental health. The documents had been produced. The wife had not embarked upon a fishing expedition. The court was required to decide whether the objection should be upheld.
The court considered the relevant provisions of the Family Law Act 1975 (Cth) and the relevant case law. The court noted that the purpose of a subpoena is to ensure that all relevant evidence is before the court. The court also noted that the requirement to particularise the documents in the subpoena is not absolute and that the court may allow a subpoena to stand if the documents are likely to be of apparent relevance to the proceedings. The court held that the documents were likely to be of apparent relevance to the proceedings and that the wife had not embarked upon a fishing expedition. The court held that the objection should be dismissed.

The court dismissed the husband’s objection to the subpoena. The court noted that the wife had not embarked upon a fishing expedition and that the documents were likely to be of apparent relevance to the proceedings. The court held that the subpoena did not need to be particularised to a high degree of specificity. The court held that the wife was entitled to the documents.

Orders

Orders of the court

ADC 30 of 2020

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MS MILLMAN

Applicant

AND:

MR MILLMAN

Respondent

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

20 OCTOBER 2021

THE COURT ORDERS THAT:

1. The husband’s objection to the subpoena directed to Dr HH dated 28 September 2021 is dismissed.

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.

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.

File number(s):	ADC 30 of 2020
Judgment of:	BERMAN J
Date of judgment:	20 October 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Objection to Subpoena – Where the wife caused a subpoena to issue to the husband’s general practitioner – Where the husband objected on the basis that the subpoena does not sufficiently identify the documents that are likely to be relevant to the proceedings – Where the documents have been produced – Where the husband’s mental health is a relevant issue in the proceedings – Where the documents are likely to be of apparent relevance – Where the wife has not embarked upon a fishing expedition – Objection dismissed.
Legislation:	Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.38
Cases cited:	Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 Hatton v Attorney-General of Commonwealth of Australia (2000) FLC 93-038 X Pty Ltd & Ors & Merhi [2015] FamCA 622
Division:	Division 1 First Instance
Number of paragraphs:	24
Date of hearing:	18 October 2021
Place:	Adelaide
Counsel for the Applicant:	Ms Lewis
Solicitor for the Applicant:	Jacqui Ion Lawyers Pty Ltd
Counsel for the Respondents:	Mr Dillon
Solicitor for the Respondents:	Angela Ferdinandy

ADC 30 of 2020
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:	MS MILLMAN Applicant
AND:	MR MILLMAN Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	20 OCTOBER 2021