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 |
| Jermyn & Carling [2012] FMCAfam 814 Baker v. Campbell (1983) 153 CLR 52 D v. National Society for the Prevention of Cruelty to Children [1978] AC 171 Rex v Duchess of Kingston, 20 How. St. Tr 355, 572-73 (1776) R v RJS 45 CR (3rd) 161 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
The proceedings are listed for interim hearing 8 October 2013 at 9.30am.
Each party is to file and serve any additional material which they seek to rely at interim hearing by 2…
Continue reading MILNE & MILNE
Sign in free to access the full text
- AGLC
- MILNE & MILNE [2013] FCCA 1620
- Case
- [2013] FCCA 1620
- Decision Date
CaseChat Overview and Summary
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
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.