Riemann & Riemann - [2017] FamCA 318

FAMILY COURT OF AUSTRALIA

RIEMANN & RIEMANN

[2017] FamCA 318

FAMILY LAW – PRACTICE AND PROCEDURE –Where the father seeks leave to inspect subpoenaed documents produced by the organisation providing psychological counselling to the children –Where the children’s psychologist objects to the parties having access to the subpoenaed documents – Consideration of Division 12A of the Family Law Act 1975 (Cth) –Relevance to the proceedings –Where the Court finds that the children were entitled to have their interests properly represented –Where the Court finds that the children’s interests have not been properly represented as a first inspection of the documents produced has not occurred – Orders made for the Independent Children’s Lawyer to have first right of access to the subpoenaed documents to redact material not relevant to the proceedings.

Family Law Act 1975 (Cth), ss 43, 43(1)(c), 60B, 60B(4), 69ZN, div 12A

Family Law Rules 2004 (Cth), rr 15.16, 15.22, 15.26, 15.30, 15.31, 15.31(b), 15.32
Explanatory Memoranda Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)
National Legal Aid, Guidelines for Independent Children’s Lawyers (2013)

United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, UNTS 1577 (entered into force 2 September 1990) art 3, 12, 16

Child Support Registrar & Nixon [2007] FamCA 32
Crawford & Sisinis and Anor [2014] FamCA 912
Farmer & Rogers [2010] FamCAFC 253
In the marriage of Blann & Blann (1983) FLC 91-322
Kinsella v Kinsella 696 A.2d 556 (NJ, 1997)
National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372
Official Trustee in Bankruptcy v Donovan and Donovan and Stevens (1996) FLC 92-703.
R v Barton and Ors [1981] 2 NSWLR 414
The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248

APPLICANT:

Mr Riemann

RESPONDENT:

Ms Riemann

INDEPENDENT CHILDREN’S LAWYER:

Mr O'Dowd

FILE NUMBER:

SYC

5764

2014

DATE DELIVERED:

1 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

In Chambers

REPRESENTATION

COUNSEL FOR THEAPPLICANT:

Mr O'Ryan QC

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Kearney QC

SOLICITOR FOR THERESPONDENT:

Lander and Rogers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

Orders

Subject to Order 2 below:
a)The Independent Children’s Lawyer is granted leave to inspect and photocopy the documents produced by F Psychology pursuant to the subpoena issued by the Independent Children’s Lawyer on 9 September 2016.
b)The Independent Children’s Lawyer is to redact from the photocopied documents the material, if any, that in the opinion of the Independent Children’s Lawyer is of no apparent relevance to the parenting proceedings (“the redacted documents”).
c)The Independent Children’s Lawyer is to provide Dr E and the parties with a copy of the redacted documents within 48 hours of those redactions having been made.
d)The parties are restrained from discussing the contents of the redacted documents with any other person not directly related to the proceedings.
e)Subsequent to being provided with the redacted documents, the parties’…

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 Riemann & Riemann

Details

AGLC: Riemann & Riemann [2017] FamCA 318
Case: [2017] FamCA 318
Decision Date: 1 May 2017

CaseChat Overview and Summary

This matter concerned parenting proceedings before McClelland J. The dispute involved the Independent Children’s Lawyer (ICL) seeking to inspect and photocopy documents produced by F Psychology pursuant to a subpoena. The parties and the ICL had differing views on the appropriate level of access to these documents, particularly concerning the potential impact on the children and the therapeutic relationship with F Psychology.

The court was required to determine the terms upon which the ICL and the parties' legal representatives could access the documents produced by F Psychology. Specifically, the court needed to balance the need for relevant information to be available for the parenting proceedings with the potential risks to the children's emotional safety and their therapeutic relationship with the psychologist, as articulated by F Psychology. The court also had to consider the father's opposition to initial access by legal representatives and the ICL.

McClelland J applied principles concerning the appropriate handling of sensitive documents in family law proceedings, particularly where the welfare of children is concerned. The court's reasoning focused on establishing a structured process for document inspection. This involved granting the ICL leave to inspect and photocopy the documents, with the ICL tasked with redacting material deemed irrelevant to the proceedings. The redacted documents were to be provided to the parties and Dr E, with restrictions on further discussion. Legal representatives were then granted leave to inspect the original un-redacted documents, but not to photocopy them, allowing them to assess the ICL's redactions.

The court ordered that, subject to specific conditions, the ICL be granted leave to inspect and photocopy the documents from F Psychology. The ICL was to redact irrelevant material and provide the redacted documents to Dr E and the parties within 48 hours. The parties were restrained from discussing the redacted documents with unauthorised persons. Legal representatives, but not the parties themselves, were granted leave to inspect the original un-redacted documents. A mechanism was established for parties to challenge any redactions made by the ICL. In the event the ICL was unable or unwilling to comply with these orders, or believed providing the redacted documents posed an unacceptable risk to the children, the ICL was to apply for further directions.

Orders

Orders of the court

Subject to Order 2 below:

a) The Independent Children’s Lawyer is granted leave to inspect and photocopy the documents produced by F Psychology pursuant to the subpoena issued by the Independent Children’s Lawyer on 9 September 2016.

b) The Independent Children’s Lawyer is to redact from the photocopied documents the material, if any, that in the opinion of the Independent Children’s Lawyer is of no apparent relevance to the parenting proceedings (“the redacted documents”).

c) The Independent Children’s Lawyer is to provide Dr E and the parties with a copy of the redacted documents within 48 hours of those redactions having been made.

d) The parties are restrained from discussing the contents of the redacted documents with any other person not directly related to the proceedings.

e) Subsequent to being provided with the redacted documents, the parties’ legal representatives (but not the parties) are granted leave to inspect (but not to photocopy) the original un-redacted documents produced by F Psychology.

f) If, subsequent to the parties’ legal representatives inspecting the documents in accordance with order 1(e) above, a party wishes to challenge any redaction made by the Independent Children’s Lawyer, in accordance with Order 1(b) above, they may do so upon providing 48 hours’ notice to the other party, the Independent Children’s Lawyer and to the Court.

If the Independent Children’s Lawyer is unable or unwilling to act in accordance with Order 1(a), 1(b) and 1(c) above, or, having inspected the documents, is of the opinion that provision of the redacted documents to the parties would expose the children to an unacceptable risk of psychological or physical harm, then within 48 hours of the Independent Children’s Lawyer becoming aware of that fact or making that decision, the Independent Children’s Lawyer is to apply for the matter to be listed for further directions and is to notify the parties of that request.

Note: The form of the order is subject to the entry of the order in the Court’s records.

Background

Background to the litigation

In that letter dated 1 March 2017 addressed to the ICL, the solicitors for the father nonetheless stated:If however, what we have outlined above is not acceptable to you and, contrary to our position, you decide to pursue the issue with [F Psychology] then in those circumstances we contend that it must be in writing and any response from Dr [H], or from any representative of [F Psychology], should also be in writing and that a copy of this material is made available to the parties and their lawyers. Further, it should be made clear to Dr [H] that unlike her contention as stated in her email of 6 December 2016, the issues she wishes to raise must comprise a statement of the facts that are relevant to her opinion and not simply a stated conclusion or repetition of her concerns. If there exist facts that are relevant to the question of access then the Court must be able to evaluate them, not simply be left with the opinion that Dr [H] has formed about those matters. (emphasis added) On 7 March 2017 the ICL sent a further letter to Dr H in which the ICL sought the following clarification:…The writer seeks further details of the issues which you specifically raise as a concern regarding risk to the children and risk to their relationship with one or both of their parents in the event that leave is granted to inspect the produced material. The writer seeks clarification that the referenced risk is additional to the risk of the loss of the children’s therapeutic relationship with your organisation. Also on 7 March 2017, F Psychology replied to the ICL:The children experience their father as intrusive and invalidating. Permitting him to read the file would reinforce the belief that their father doesn’t listen to them and would undermine the therapeutic work that has occurred to restore their view of their father… this may lead to the possibility of the children being unsafe emotionally. (emphasis added) As noted, by email dated 28 October 2016, the ICL advised the parties that:…In my opinion the legal representatives and the ICL will require access that [sic] that material prior to 8 November 2016 so we are all in a position to determine what (if any) submissions need to be made in relation to this issue. That proposed course of action was, in my view, sensible and appropriate. Indeed, as noted above, that proposal was initially agreed to by the solicitors for the father. However, that position was reversed at the hearing on 8 November 2016 with counsel for the mother agreeing to the parties’ legal advisors and the ICL having first access to the documents but the father opposed that course of action. As noted, in their email to the ICL dated 28 October 2016, the solicitors for the mother indicated that they had no objection to the ICL conducting a first inspection of the material. By email dated 20 December 2016, the parties were invited to address the Court, at the hearing on 21 December 2016 in respect to the authorities referred to in that email. Those authorities provided examples of where superior courts have recognised that, in the circumstances of the case, it may be appropriate to initially restrict access to documents produced on a subpoena to legal representatives only. The hearing on 21 December 2016 did not take place and no party, including the ICL, has subsequently proposed that course of action be adopted in this case.

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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