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Case [2019] FCCA 2549 21 August 2019

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FEDERAL CIRCUIT COURT OF AUSTRALIA

RADER & RADER

[2019] FCCA 2549

Catchwords:
FAMILY LAW – Parenting – subpoenas – objections to access to children’s counselling records – privacy – public interest immunity – applicable law for preliminary issues – first access granted to Independent Children’s Lawyer.

Legislation:

Evidence Act 1995 (Cth), ss.55, 126, 126J

Evidence Act 1995 (NSW), ss.126B, 131A

Family Law Act 1975 (Cth), ss.43, 60CC, 69ZM, Pt. VII, div.12A

Federal Circuit Court Rules 2001 (Cth), rr.15.09, 15A(14)

Judiciary Act 1903 (Cth)

Cases cited:

Crawford & Sisinis [2014] FamCA 912

Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49
Feinster & Feinster and Anor [2006] FamCA 232
Goldy v Goldy (No.2) [2011] FamCA 418
Jermyn v Carling [2012] FMCAfam 814
Mann & Carnell (1999) 201 CLR 1
Milne & Milne [2013] FCCA 1620
Masson & Parsons (2019) 368 ALR 583
National Employer’s Mutual General Insurance Co Ltd v Waind (1979) 141 CLR 648
R v Barton & Ors [1981] 2 NSWLR 414
Riemann & Riemann [2017] FamCA 318
Tsocas & Rilak [2018] FamCA 981
Yan v Yan & Anor [2014] FCCA 2519

Applicant:

MS RADER

Respondent:

MR RADER

File Number:

SYC 1641 of 2019

Judgment of:

Judge B Smith

Hearing date:

31 July 2019

Date of Last Submission:

31 July 2019

Delivered at:

Sydney

Delivered on:

21 August 2019

REPRESENTATION

Counsel for the Applicant:

Ms Campbell

Solicitors for the Applicant:

Bowral Legal

Counsel for the Respondent:

Ms Lane

Solicitors for the Respondent:

Swiftly Legal

Solicitors for the Independent Children's Lawyer:

Morton Family Lawyers

ORDERS

The objections to the following subpoenas filed by the respondent on 23 May, 2019 and 9 July, 2019 be dismissed:
(a)the subpoena addressed to Suburb J family practice filed 10 May, 2019;
(b)the subpoena addressed to Dr A, Hospital B filed 26 June, 2019;
(c)the subpoena addressed to Psychologists C filed 10 May, 2019;
(d)the subpoena addressed to Psychologists C filed 26 June, 2019;
(e)the subpoena addressed to F Radiology network filed 26 June, 2019;
(f)the subpoena addressed to School D filed on 10 May, 2019; and
(g)the two (2) subpoenas addressed to School E school both filed on 10 May, 2019.
The Independent Children’s Lawyer be granted first access to the subpoenas addressed to School D and School E filed on 10 May, 2019 for the purpose of separating out the school counselling records, with such school counselling records to only be accessed by the Independent Children’s Lawyer, and the parties to have leave to inspect all other material produced upon completion of such separation.
The Independent Children’s Lawyer shall have sole access to the material relating to the children’s treatment records, returned by subpoena addressed to Psychologists C filed 10 May, 2019.
The Independent Children’s Lawyer and the parties have leave to inspect the documents produced on subpoena by:
(a)Suburb J family practice;
(b)Dr A, Prince of Hospital B;
(c)Psychologists C in respect of the father;
(d)F radiology;
(e)School D upon the school counselling records being removed by the…

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.

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Details

AGLC: RADER & RADER [2019] FCCA 2549
Case: [2019] FCCA 2549
Decision Date: 21 August 2019

CaseChat Overview and Summary

In RADER & RADER, heard before Judge B Smith, the court considered objections raised by a parent to several subpoenas issued by the other parent. These subpoenas sought access to various documents, including counselling records, medical reports, and school records pertaining to the children of the marriage. The core of the dispute revolved around the privacy of the children and the applicability of public interest immunity in the context of family law proceedings.

The legal issues before the court were whether the objections to the subpoenas should be upheld, particularly concerning the privacy of the children's counselling records, and how to balance the need for disclosure in parenting proceedings with the protection of sensitive personal information. The court was required to determine the appropriate legal framework for assessing these objections and to decide on the extent to which the requested documents should be made available to the parties and the Independent Children’s Lawyer.

The court dismissed the objections to the subpoenas, finding that the respondent had not established grounds for their refusal. In its reasoning, the court implicitly applied principles favouring disclosure in family law matters where relevant to the children's best interests, while also acknowledging the need to protect sensitive information. The court ordered that the Independent Children’s Lawyer be granted first access to certain records, specifically school counselling records, to separate them from other documents. This approach allowed for the protection of the most sensitive information while permitting the parties to inspect the remaining disclosed material.

Orders

Orders of the court

The objections to the following subpoenas filed by the respondent on 23 May, 2019 and 9 July, 2019 be dismissed:

(a) the subpoena addressed to Suburb J family practice filed 10 May, 2019;

(b) the subpoena addressed to Dr A, Hospital B filed 26 June, 2019;

(d) the subpoena addressed to Psychologists C filed 26 June, 2019;

(e) the subpoena addressed to F Radiology network filed 26 June, 2019;

(f) the subpoena addressed to School D filed on 10 May, 2019; and

(g) the two (2) subpoenas addressed to School E school both filed on 10 May, 2019.

The Independent Children’s Lawyer be granted first access to the subpoenas addressed to School D and School E filed on 10 May, 2019 for the purpose of separating out the school counselling records, with such school counselling records to only be accessed by the Independent Children’s Lawyer, and the parties to have leave to inspect all other material produced upon completion of such separation.

The Independent Children’s Lawyer shall have sole access to the material relating to the children’s treatment records, returned by subpoena addressed to Psychologists C filed 10 May, 2019.

The Independent Children’s Lawyer and the parties have leave to inspect the documents produced on subpoena by:

(a) Suburb J family practice;

(b) Dr A, Prince of Hospital B;

(d) F radiology;

(e) School D upon the school counselling records being removed by the Independent Children’s Lawyer pursuant to order 2 herein; and

(f) School E school upon the school counselling records being removed by the Independent Children’s Lawyer pursuant to order 2 herein.

The father’s notice of objection filed 7 August, 2019 be adjourned to 13 September, 2019 at 9:30am.

The costs of today be reserved.

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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Citations

RADER & RADER [2019] FCCA 2549

Cases Citing This Decision

No citing cases yet.

Cases Cited

Masson v Parsons [2019] HCA 21
Citation 1 (Para 2)

…Reliance was placed upon s.79 of the Judiciary Act 1903 (Cth) and, in particular, Masson & Parsons (2019) 368 ALR 583. It seems to me to be misconceived. Section 79(1) of the Judiciary Act states that: 79 State or Territory laws to govern where applicable (1) The laws of each State or Territory, including the laws re…
Tsocas and Rilak [2018] FamCA 981
Citation 2 (Para 14)

…I was also referred by the father to Tsocas & Rilak [2018] FamCA 981 where Justice Gill in the Family Court noted at 22: At least three issues of principle arise. There is a public interest in having proceedings determined based upon relevant evidence. It is in the child’s interests to have the correct decision mad…
Riemann & Riemann [2017] FamCA 318
Citation 3 (Para 42)

…hat Justice Watts said in Feinster & Feinster and Anor [2006] FamCA 232 and what Deputy Chief Justice McClelland said about that in Riemann & Riemann [2017] FamCA 318. I adopt in particular Deputy Chief Justice McClelland’s persuasive comments at [95]: Given the approach of the parties in this matter it is unnecess…
Crawford & Sisinis and Anor [2014] FamCA 912
Citation 4 (Para 36)

…eral principles relating to subpoenas are well-known as to require no further discussion and they are summarised to some extent in Crawford & Sisinis [2014] FamCA 912 .…
Yan & Yan & Anor [2014] FCCA 2519
Citation 5 (Para 6)

…ance of this Court in support of this proposition, including Jermyn v Carling [2012] FMCAfam 814, Milne & Milne [2013] FCCA 1620 and Yan v Yan & Anor [2014] FCCA 2519. These cases involved an acceptance that the Evidence Act 1995 (NSW) would apply in these circumstances following a decision of a Justice of the Fami…
MILNE & MILNE [2013] FCCA 1620
Citation 6 (Para 6)

…er referred to decisions at first instance of this Court in support of this proposition, including Jermyn v Carling [2012] FMCAfam 814, Milne & Milne [2013] FCCA 1620 and Yan v Yan & Anor [2014] FCCA 2519. These cases involved an acceptance that the Evidence Act 1995 (NSW) would apply in these circumstances followi…
Jermyn & Carling [2012] FMCAfam 814
Citation 7 (Para 6)

…I note that the father referred to decisions at first instance of this Court in support of this proposition, including Jermyn v Carling [2012] FMCAfam 814, Milne & Milne [2013] FCCA 1620 and Yan v Yan & Anor [2014] FCCA 2519. These cases involved an acceptance that the Evidence Act 1995 (NSW) would apply in these cir…
Goldy & Goldy (No 2) [2011] FamCA 418
Citation 8 (Para 6)

…circumstances following a decision of a Justice of the Family Court of Australia sitting at first instance in South Australia in Goldy v Goldy (No.2) [2011] FamCA 418 who took that approach in respect of the South Australian legislation. I have reviewed them. I note they were decided before the recent restatement i…
Feinster & Feinster and Anor [2006] FamCA 232
Citation 9 (Para 42)

…immunity was pressed in the written submissions, but only faintly in oral submissions. I note what Justice Watts said in Feinster & Feinster and Anor [2006] FamCA 232 and what Deputy Chief Justice McClelland said about that in Riemann & Riemann [2017] FamCA 318. I adopt in particular Deputy Chief Justice McClelland…
Esso Australia Resources Ltd v Federal Commissioner of Taxation [1999] HCA 67
Citation 10 (Para 5)

…of the Commonwealth equivalent, were unsuccessful: see Mann & Carnell (1999) 201 CLR 1; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49.…
Mann v Carnell [1999] HCA 66
Citation 11 (Para 5)

…ct 1995 (NSW) to legislation without a provision such as s.131A of that Act, or of the Commonwealth equivalent, were unsuccessful: see Mann & Carnell (1999) 201 CLR 1; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49.…
National Employers' Mutual General Insurance Association Ltd v Waind [1979] HCA 11
Citation 12 (Para 40)

…though s.55 may not apply at this stage the common law test is similar, and I refer to National Employer’s Mutual General Insurance Co Ltd v Waind (1979) 141 CLR 648. What we are looking for is something that could possibly throw light on the issues of the substantive proceedings. It is a very low test.…

Legislation Cited

Evidence Act 1995 (Cth) 126, 126B, 126J, 131A, 55
6 mentions (from Para 40)
Family Law Act 1975 (Cth) 43, 60CC, 69ZM
4 mentions
Federal Circuit Court Rules 2001 (Cth) 15.09, 15A(14)
3 mentions (from Para 6)
Judiciary Act 1903 (Cth)
1 mention (from Para 2)