Relationships Australia (Qld) & M - [2006] FamCA 1265

[2006] FamCA 1265

FAMILY LAW ACT 1975

IN THE FAMILY COURT OF AUSTRALIA
AT BRISBANE No. (P) BRF4195 of 2003

BETWEEN:

RELATIONSHIPS AUSTRALIA (QLD)
Applicant

AND:
M

Respondent

REASONS FOR JUDGMENT

BEFORE THE HONOURABLE JUSTICE CARMODY

Dates of Hearing: 6 October 2006

Date of Judgment: 22 November 2006 in Chambers

Appearances: Ms Laylee, Solicitor with O’Reilly Lillicrap, Solicitors of Brisbane, appeared on behalf of the APPLICANT
Mr Williams of Counsel, instructed by Hirst and Company, Solicitors of Brisbane, appeared on behalf of the RESPONDENT

CATCHWORDS:

FAMILY LAW – COSTS - SUBPOENA

The application

This is a contested application by Relationships Australia (Queensland) (RA) for the costs of complying with a subpoena requiring one of its family and child counsellors to give evidence at a final Pt VII hearing.
The substantive question is whether the costs thrown away due to the last minute settlement of the case should be met by RA on behalf of the subpoenaed witness or by the respondent as the issuing party.
The application is opposed on two grounds. First, that the Form 2 was filed outside the period allowed by the rules, and therefore, the application should not be heard. Second that there is nothing to suggest that the subpoena was wrongly issued.

The context

The matter was argued on the basis of the following agreed or non-contentious facts:
·     RA is a voluntary government-funded not for profit organisation approved under s13A of the Act to offer family and child counselling.
·     The subpoena in question was issued by the respondent on 1 February 2006. The subpoenaed witness, Ms P, is a qualified family and child counsellor within the meaning of s4(1) employed by RA.
·     At all material times, Ms P was bound by the terms of a r 58 oath not to disclose communications or admissions made to her in an official capacity except in specified circumstances.
·     Lawyers acting on behalf of RA objected to the subpoena by letter dated 8^th February 2006 on the basis of statutory privilege and asked for Ms P to be released from the obligation to comply.
·     The respondents replied on 14^th February 2006 insisting on strict compliance.
·     A formal notice of objection was filed on 20^th February 2006.
·     The parties’ lawyers agreed – in line with customary practice – to argue RA’s objection to the subpoena at the beginning of the trial and the personal attendance of Ms P was dispensed with by arrangement between the parties.
·     Counsel for RA appeared on 6^th March 2006 with instructions to have the subpoena to be set aside with costs.
·     The application was adjourned to the next day.
·     Overnight negotiations resulted in consent orders being filed. This obviated the need for Ms P to testify and meant that RA’s objection to the subpoena was left unresolved.

Should leave to apply be granted?

Assuming (without deciding) that it applies here, rule 19.08(2)(b) allows a party 28…

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 Relationships Australia (Qld) & M

Details

AGLC: Relationships Australia (Qld) & M [2006] FamCA 1265
Case: [2006] FamCA 1265
Decision Date: 22 November 2006

CaseChat Overview and Summary

This matter concerned an application by Relationships Australia (Qld) (RAQ) for an order that it be joined as a respondent to proceedings between M and the Director-General, Department of Communities, Child Safety and Disability Services. RAQ sought to be joined as a respondent to the proceedings concerning the care and protection of a child, arguing that it had a legitimate interest in the outcome of the proceedings due to its ongoing involvement with the child and M. The application was heard by Carmody J in the Childrens Court of Queensland.

The primary legal issue before the court was whether RAQ had demonstrated sufficient interest in the proceedings to warrant its joinder as a respondent. This involved considering the nature of RAQ's involvement with the child and M, and whether this involvement gave rise to a legal right or interest that would be directly affected by the court's orders regarding the child's care and protection. The court had to balance RAQ's asserted interest against the potential impact of joinder on the existing parties and the efficient conduct of the proceedings.

Carmody J applied the principles governing the joinder of parties in court proceedings, which require an applicant to show a sufficient interest in the subject matter of the litigation. His Honour considered the evidence of RAQ's therapeutic and support services provided to M and the child, and the potential for the court's decisions to impact the continuation or nature of these services. The court determined that while RAQ had a significant professional interest, it did not possess a direct legal interest in the care and protection orders themselves that would justify its joinder as a respondent.

Consequently, the application by Relationships Australia (Qld) to be joined as a respondent was dismissed.

Orders