Oliveri and Oliveri (No. 4)

[2021] FamCA 260

FAMILY COURT OF AUSTRALIA

Oliveri & Oliveri (No. 4) [2021] FamCA 260

File number(s):

ADC 2966 of 2018

Judgment of:

BERMAN J

Date of judgment:

7 May 2021

Catchwords:

FAMILY LAW – CHILDREN – With whom a child spends time with – Best interests of a child – Family violence – Where the father seeks an increase in the time he spends with the children – Where the father seeks his time be unsupervised – Where the mother opposes any increased or unsupervised time – Where the father currently spends limited supervised time with the children – Where allegations of family violence have previously been made – Where the father has been attending counselling - Where a meaningful relationship should be maintained.

FAMILY LAW – DISCOVERY – Privilege – Relevance - Where the wife makes reference to a 76 page document – Where the husband seeks that the document be produced – Where the wife claims legal professional privilege – Whether the document was created for the dominant purpose of litigation or legal advice – Where the document seems to have been prepared on the advice of a domestic violence worker or counsellor -  Where it is likely the document was prepared to assist in criminal proceedings – Where the wife has not established the document was prepared for the dominant purpose of obtaining legal advice – Consideration of the relevance of the document.

Cases cited:

AWB Ltdv Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234

Grant v Downs (1976) 135 CLR 674

Mann v Carnell (1999) 201 CLR 1

Number of paragraphs:

47

Date of hearing:

27 April 2021

Place:

Adelaide

Counsel for the Applicant:

Mr Richards

Solicitor for the Applicant:

Resolve Divorce Lawyers

Counsel for the Respondents:

Mr McGinn

Solicitor for the Respondents:

Clelands Lawyers Adelaide Pty Ltd

ORDERS

ADC 2966 of 2018

BETWEEN:

MS OLIVERI
Applicant

AND:

MR OLIVERI

First Respondent

MS R OLIVERI
Second Respondent

MR S OLIVERI
Third Respondent

ORDER MADE BY:	BERMAN J
DATE OF ORDER:	7 MAY 2021

THE COURT ORDERS THAT:

1.Paragraph 1 of orders made 10 December 2020 be varied as follows:

(a)That X and Y both born … 2017 (“the children”) spend time with the husband as follows:

(i)from 10.00 am until 5.00 pm on Saturday commencing 11 July 2020 and each alternate Saturday thereafter; and

(ii)from 10.00 am until 5.00 pm on Sunday commencing 19 July 2020 and each alternate Sunday thereafter.

2.The wife do forthwith produce a copy of the 76 page document referred to in paragraph 7 of the wife’s affidavit filed 23 October 2020.

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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Oliveri & Oliveri has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

BERMAN J

INTRODUCTION

1. On 18 March 2021 orders were made listing all applications for final orders for hearing to 20 September 2021.  On 23 April 2021 the trial direction orders were amended to reflect the uncertainty arising from the absence of the particulars of orders sought by Ms R Oliveri and Mr S Oliveri (the second and third respondents).

2. Outstanding for determination are paragraphs 2, 3 and 4.2 of the husband’s Application in a Case filed 6 April 2021 and the wife’s opposition to same as set out in her Response to Application in a Case filed 14 April 2021.

3. The husband elected not to proceed with paragraph 4.3 of the application and the matters raised in paragraph 5 have been the subject of agreement and do not require an order.

   THE WIFE’S 76 PAGE DOCUMENT

4. The parties remain unable to reach agreement as to the future parenting arrangements for X and Y both born in 2017 (collectively “the children”). By order made 8 July 2020 a report was ordered pursuant to section 62G(2) of the Family Law Act 1975 (Cth). Following a family assessment conducted by family consultant Ms J, a report was published on 5 October 2020.

5. A focus of the assessment was the extent to which the wife’s allegations of family violence perpetrated by the husband should be brought to account in determining the interim parenting arrangements.

6. The following appears at paragraph 32 of the family report:

   When asked about what appear to be discrepancies in her narrative around some of the family violence, [the wife] said the videos ‘speak for themselves’ and she has told the police what happened.  She also claimed she had taken all of the evidence she has to the police.  [The wife] said she taped a number of conversations with the father and has his phone records to support her claims.  When asked how she was able to gather so much evidence, she explained that the Domestic Violence workers and her counsellor had encouraged her to do so.  She has given a 76 page document to the police. …

7. In the wife’s affidavit filed 23 October 2020, she refers to the criminal proceedings involving the husband arising from her allegations of family violence and seeks to correct what she considers is a misunderstanding by the family consultant as to the status of the 76 page document in the following terms:

   6.In my interviews with Ms J in preparation of the Family Report I advised Ms J that I had provided “evidence” to the police with respect to the husband’s criminal proceedings.  I did not go into any detail with Ms J about what this evidence entailed.

   7.The 76 page document Ms J refers to has not been provided to SAPOL.  This is the document I have prepared for my own records.[1]

   [1] Affidavit of the wife filed 23 October 2020.

8. Given the reference by the family consultant to the document, the husband considers it is likely to be relevant to the issue of family violence both as to the criminal proceedings but also the competing parenting proposals of the parties.  The husband seeks that the document be produced. 

9. The application for production is opposed by the wife on the basis of legal professional privilege.

   LEGAL PROFESSIONAL PRIVILEGE

10. The wife’s objection to the application for production of the 76 page document is not in the context of any application to adduce evidence. Accordingly Pt 3.10 of the Evidence Act 1995 (Cth) does not apply. The matter is to be determined by common law rules (see Mann v Carnell (1999) 201 CLR 1.)

11. The onus rests with the party seeking to rely upon privilege to establish its existence.

12. The proper approach is to consider whether the document was created for the “dominant purpose” of obtaining legal advice.  If that test is satisfied then the document attracts privilege.

13. In Grant v Downs (1976) 135 CLR 674 at 677 Barwick CJ considered the relevant principle to the “dominant purpose” test as follows:

    a document which was produced or brought into existence either with the dominant purpose of its author, or of the person or authority under whose direction, whether particular or general, it was produced or brought into existence, of using it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation, at the time of its production in reasonable prospect, should be privileged and excluded from inspection.

14. In AWB Ltdv Honourable Terence Rhoderic Hudson Cole (No 5) [2006] FCA 1234 Young J observed:

    44.…

    (1) …The onus might be discharged by evidence as to the circumstances and context in which the communications occurred or the documents were brought into existence, or by evidence as to the purposes of the person who made the communication, or authored the document, or procured its creation.  It might also be discharged by reference to the nature of the documents, supported by argument or submissions …

    (Citations omitted)

15. Accordingly, I must apply an objective test to determine whether the documents were brought into existence for the dominant purpose of litigation or legal advice.

16. The wife has the onus of establishing that the document has as its dominant purpose legal advice.  The document was not the subject of formal disclosure but rather came to light as a result of the discussion between the wife and the family consultant.  The issue is not determined by whether the document authored by the wife was actually given to the police.  I suspect that if it was, this may well constitute a waiver of privilege at common law.  In any event, if the document had or has been provided to the police then it is likely to be discovered as part of the procedural requirements of the criminal proceedings.

17. The husband argues that the wife has not discharged the onus of establishing that the document attracts legal professional privilege.

18. The wife does not assert that the document was prepared by her on the advice of or the recommendation of her solicitor.  The document may well attract privilege if it is the wife’s assertion that it was prepared in anticipation of legal proceedings in circumstances where such a document might be of assistance in future litigation.

19. The wife does not challenge the statement in the family report attributed to the wife that the document was prepared following the advice of a domestic violence worker and a counsellor.

20. It is not axiomatic that a document prepared in those circumstances could or should always be considered as being prepared in anticipation of future litigation.

21. It is reasonable to find that in the absence of an explanation to the contrary, that the document was likely prepared to assist in criminal proceedings alleging the commission of offences involving family violence.

22. The wife does not seek to explain the manner in which the document was prepared and to whom it has been given.

23. No chronology has been provided as to when the preparation of the document was commenced.  The Court has not been provided with any evidence as to the purpose for which the document was created other than on the advice of those assisting the wife in respect of her allegation that the husband was the perpetrator of family violence.

24. I am not able to find on the evidence presented that the wife has established the document was created for the “dominant purpose” of obtaining legal advice.  Accordingly, the document does not attract legal professional privilege.

    RELEVANCE OF THE 76 PAGE DOCUMENT

25. The test for relevance was stated by the Federal Court in Trade Practices Commission v Arnotts Ltdand Ors (No.2) [1989] FCA 248 at 103:

    Without restricting this inquiry, it is convenient to address the present application in the first instance by reference to two questions:

    (1)Does the material sought have an apparent relevance to the issues in the principal proceedings, ie, is adjectival, as distinct from substantive, relevance established? ….

    …

    …

    The test of adjectival relevance is satisfied if the material has apparent relevance.  In my opinion, the documentation called for here could possibly throw light on the issues in the main case.  In my opinion, adjectival relevance is established.

26. The issue of family violence is a significant issue in the proceedings.  The document is clearly identified and the basis upon which it was created was to record matters relevant to the conduct of each of the parties but in particular the husband, given the mother’s allegations that he has perpetrated family violence.  

27. It could not be said that the husband is “fishing” and as such it is likely that the document would be considered as relevant, discoverable and able to be produced.

28. During the course of the argument the Court was advised that the criminal proceedings are to be heard and determined in 2021.  Whilst not the subject of argument, the 76 page document has not been introduced into evidence and upon its production, would be subject to the implied undertaking that without leave of the Court it may not be able to be used in other proceedings.

    PARENTING CONSIDERATIONS

29. On 10 December 2020 orders made on 8 July 2020 were varied as follows:

    (a)That the children spend time with the father as follows:

    (i)from 10.00 am until 3.00 pm on Saturday commencing 11 July 2020 and each alternate Saturday thereafter;

    (ii)from 10.00 am until 3.00 pm on Sunday commencing 19 July 2020 and each alternate Sunday thereafter.

30. The orders made represented a reduction of the time that the children would spend with the father on alternating Saturdays and Sundays by two hours each day.

31. The reduction in the father’s time brought to account the family report and the report of Mr H who had provided the father with counselling directed to the mother’s allegation that the father was the perpetrator of family violence.

32. Ultimately, I considered that the time that the children spend with the father should be reduced to reflect the mother’s anxiety and her concerns as to the husband’s conduct and also the strong recommendation of the family consultant that the father may not be attuned to the children.

33. The father seeks that the children spend time with him as follows:

    (a)Each alternate weekend from 5.00 pm Friday to 5.00 pm Sunday; and

    (b)From 3.00 pm to 7.00 pm each Wednesday.

34. The father’s application is supported by his affidavit filed 6 April 2021.  The basis for the husband’s application is the observation of the husband that there has been a concerning change in the children’s behaviour.  Paragraph 10 of the husband’s affidavit sets out the basis of the father’s concerns.  The issues range from the purported observation of the father that the children appeared scared and hesitant to engage in normal outdoor activities to a concern that in the wife’s home, he is being referred to as the “second daddy” and that he is no longer a part of the children’s family.

35. It is a further concern of the husband that the nominated supervisors are expressing frustration as to the necessity for their involvement.  The husband also observes that:

    I cannot spend enough time with each of the children so as to help develop, to teach them about life and my family, my work, my views on life.  I am finding it difficult to bond with the children in a 5 hour period once a week.  I cannot plan meals such as dinner with family and friends, play dates with cousins and family friends, reading to them at night, telling them bedtime stories, waking up with them and cooking breakfast with them.  All of these things are missing from the children’s and my life. [2]

    [2] Affidavit of the husband filed 6 April 2021, paragraph 14.

36. The wife opposes the husband’s application for the children to spend extended time with him principally because of her observations that when the children return home they engage in anxious and aggressive conduct.  The more significant issue raised by the wife’s counsel is that the issues that were of concern to the family consultant remain unresolved and given that the trial is listed for final hearing in September 2021 and should not be determined on an interim basis.

37. As discussed in my earlier judgment,[3] the separate proposals of the parties must always be determined through the lens of what is in the best interests of the children.

    [3] See Oliveri & Oliveri (No. 2) [2020] FamCA 1052

38. I have determined that the children should maintain a meaningful relationship with the husband.  The test is not whether the relationship is optimal but rather whether it is substantial or meaningful.  The parties differ as to whether the current orders appropriately support a meaningful relationship between the children and the husband.

39. I have had regard to the affidavits of Ms C, Mr D and Ms B.

40. At this stage I have no reason to reject the observations of the supervisors that the children appear to have an appropriate relationship with their father.  I also accept that each of the supervisors find their continuing involvement as a supervisor to be onerous.  I place no weight on the individual assertions of each supervisor that they do not consider continued supervision is necessary.

41. The supervisors do not have an overview of the proceedings.  They are not cognisant of the allegations implicating the father as a perpetrator of family violence nor of my earlier findings.  

42. I have considered the affidavit of the husband’s solicitor, filed 14 April 2021, which sets out the contents of a report from Mr GG who is a counsellor specialising in family relationship and family violence at P Services.  The report confirms that on 9 April 2020, 19 May 2020, 3 June 2020 and 30 June 2020 the husband attended one on one counselling with Mr GG and also has attended three sessions of the 20 week programme of the P Services Men’s Stopping Violence therapeutic group. 

43. I am not told whether it is intended that the three sessions represents the extent of the husband’s involvement in the 20 week programme or whether they are to be considered as part of an ongoing intention by the husband to complete the course.

44. The completion by the husband of the course may well be a matter of significance.  The husband has not yet done so.

45. I bring to account the concerns of each of the parties, and in particular, the positive observations of the husband’s supervisors and the advice that the husband has undertaken some recent counselling necessary for him to gain insight as to the detrimental impact that family violence can have on children.

46. I do not consider that at present there is a basis to support the orders the husband seeks as being in the children’s best interest.

47. I do consider that the husband’s time with the children should be extended on each occasion by two hours which will have the effect of restoring the husband’s time as was ordered on 8 July 2020.

48. I consider that at the present time and given the limited evidence that I have, the orders I propose to make will maintain a meaningful relationship between the husband and the children in circumstances that will involve supervision.

49. I make orders as appear at the commencement of these reasons.

I certify that the preceding forty-nine (49) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman.

Associate:

Dated:       7 May 2021