MILNE & MILNE

Case [2013] FCCA 1620


FEDERAL CIRCUIT COURT OF AUSTRALIA

MILNE & MILNE [2013] FCCA 1620
Catchwords:
FAMILY LAW – Practice and procedure – objection to subpoena – public interest test.

Legislation:

Family Law Act 1975

Federal Circuit Court Rules 2001

Federal Circuit Court of Australia Act 1999, s.42
Mental Health Act 1990
Evidence Act 1995 (NSW), s.126B
Evidence Act 1995 (Cth), ss.69, 131
Judiciary Act 1903  

Jermyn & Carling [2012] FMCAfam 814
Bauer & Steggall [2011] FMCAfam 728
Feinster & Feinster and Anor [2006] FamCA 232
Benson & Hughes (1994) FLC 92-483
Sankey & Whitlam (1978) 142 CLR 1
Re Bell; Ex parte Lees (1980) 146 CLR 141
Hutchings & Clarke (1993) FLC 92-373
Duits & Duits 2006 CanLII 14407
Mellish v Martinson 1993 CanLII 1825
R v JT 2005 CanLII 51120
R v SLR 1991 CanLII 4532

Baker v. Campbell (1983) 153 CLR 52

D v. National Society for the Prevention of Cruelty to Children [1978] AC 171
Alfred Crompton Amusement Machines Ltd v. Customs and Excise Commissioners (No 2) [1974] AC 405, 433
R v Young [1999] NSWCCA 166
Royal Women’s Hospital v Medical Practitioners Board [2005] VSC 225
Goldy & Goldy (No. 2) [2011] FamCA 418

Rex v Duchess of Kingston, 20 How. St. Tr 355, 572-73 (1776)
United States v. Byran, 339 U.S. 323, 331 (1950)
Dean Wigmore (J. WIGMORE, EVIDENCE § 2286 , at 531)
Elkins v United States, 364 U.S. 206, 234 (1960)
AG v Mulholland; AG V Foster [1963] 2 QB 477; (1963) 1 All ER 767)
R v Pain 1 WLR 67
Sykes v DPP [1962] AC 528
Cook v Carol (1945) 1 R 515)
McTaggert v McTaggert [1948] P 94
Henly v Henly [1955] P 202
G v G [1964] 1 OR 361

R v RJS 45 CR (3rd) 161
M. (A.) v. Ryan [1997] 1 S.C.R. 157

Trammel v. United States, 445 U.S. 40 (1980)

Other Articles Cited:

A. Ligertwood, Australian Evidence (4th Ed), 2004, LexisNexis Butterworths, Sydney

Deborah Paruch, “The Psychotherapist-Patient Privilege In The Family Court: An Exemplar Of Disharmony Between Social Policy Goals, Professional Ethics, And The Current State Of The Law” published in Eliminating Unintended Bias National Association of Children’s Counsel Manual 2011

Anne Cossins and Ruth Pilkington, Balancing the Scales: “The Case for the Inadmissability of Counselling Records in Sexual Assault Trials” [1996] UNSWLawJl 13; (1996) 19(2) University of New South Wales Law Journal 222

Applicant: MR MILNE
Respondent: MS MILNE
File Number: PAC 2493 of 2009
Judgment of: Judge Harman
Hearing date: 19 September 2013
Date of Last Submission: 19 September 2013
Delivered at: Parramatta
Delivered on: 19 September 2013

REPRESENTATION

Solicitors for the Applicant: Ms Bevan of Sarah Bevan Family Lawyers
Solicitors for the Respondent: Mr Rowlandson of Rowlandson & Co

ORDERS

  1. The proceedings are listed for interim hearing 8 October 2013 at 9.30am.

  2. Each party is to file and serve any additional material which they seek to rely at interim hearing by 2…

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Details
AGLC
MILNE & MILNE [2013] FCCA 1620
Case
[2013] FCCA 1620
Decision Date

CaseChat Overview and Summary

In the matter of MILNE & MILNE, Judge Harman of the Federal Circuit Court of Australia considered applications concerning the inspection of documents and the production of evidence. The proceedings involved Mr. Milne and Ms. Milne, with the dispute centering on access to and the proper handling of certain reports and materials.

The court was required to determine several issues, including whether to grant leave for legal representatives to inspect a specific report by Dr. S, the appropriate procedure for replacing a previously sought document with a revised schedule, and the terms under which parties could inspect material produced by a third party. Further, the court had to address the status of a subpoena served on Dr. S and the handling of material already produced to the court but subject to objection.

Judge Harman made several orders to manage the discovery and inspection process. Leave was granted for inspection of Dr. S's report and for Mr. Milne's attorneys to inspect and separate material produced by a third party, with specific provisions for material not covered by a particular schedule. Ms. Milne's attorneys were also granted inspection rights from a specified date. The court noted that Dr. S's report was unsolicited and did not satisfy the subpoena, which therefore remained active. The court also acknowledged that some material had been produced but inspection had not yet been permitted due to objections.

Orders

Orders of the court

1.

The proceedings are listed for interim hearing 8 October 2013 at 9.30am.

2.

Each party is to file and serve any additional material which they seek to rely at interim hearing by 2 October 2013.

3.

Leave is granted to the legal representatives for the parties to inspect the Report produced By Dr S on letterhead of the (omitted) Clinic being a report dated 26 August 2013 addressed to the Registrar Federal Circuit Court of Australia.

4.

The Schedule comprised by Exhibit ‘R1’attached hereto, shall replace that sought to be produced on subpoena addressed to (omitted).

5.

Leave is granted to the attorneys for Mr Milne to inspect material produced by (omitted) and to interfere with material so produced so as to create two separate bundles being those called for to be produced by Schedule Exhibit ‘R1’ and those which are not.

Those which are not sought and thus to which leave to inspect in favour of the attorneys for the Respondent will not extend are to be placed in a sealed envelope not to be opened pending further order of the Court.

6.

The attorneys for Ms Milne shall, as and from commencement of business 1 October 2013, be entitled to inspect the material produced by (omitted) and subject to the above.

THE COURT NOTES THAT:

7.

The Report produced and released as above is a document produced by the (omitted) Clinic without the request of either party and does not satisfy the subpoena served upon Dr S in any fashion and thus the subpoena shall remain on foot and may in the future and upon notification upon Dr S to do so, be the subject of further call.

8.

Material has already been produced to the Court by (omitted) but leave has not yet been granted to inspect it in light of objection.

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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