Rilak & Tsocas (No 5)

[2018] FamCA 668

FAMILY COURT OF AUSTRALIA

RILAK & TSOCAS (NO. 5) [2018] FamCA 668

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoena – relevance of subpoena – treating practitioner declined to produce on subpoena – objection to subpoena in child-related proceedings - practitioner directed to produce on subpoena – parties restricted from accessing material without further court order – application to appoint expert – questions of objection to subpoena and appointment of expert to be resolved on next appearance.

Family Law Act 1975 (Cth) s 69ZN

APPLICANT: Ms Rilak

RESPONDENT: Mr Tsocas

FILE NUMBER: SYC 2062 of 2010

DATE DELIVERED: 27 August 2018

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Gill J

HEARING DATE: 27 August 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Self-representing

SOLICITOR FOR THE RESPONDENT: Self-representing

It is Ordered that

1. I direct that Ms RR is to produce material in compliance with the subpoena issued to her within fourteen days of today’s date.

2. I request that a Registrar of this Court notify Ms RR of her obligation to produce the material subject to the subpoena.

3. I prohibit any party having access to the material produced by Ms RR in accordance with the above orders and the subpoena unless they have obtained previously an order from a Judge of this Court giving them permission to do so.

4. I otherwise adjourn the objection to subpoena and the Application in a Case directed to the appointment of an expert to 14 September 2018 at 12pm.

5. The parties are granted liberty to appear by video link on that day as I will be sitting in Canberra, they may appear from the Sydney Registry.

6. I direct that each of the parties file and serve any further material they seek to rely upon either in relation to the appointment of a Single Expert or in relation to the production of material by Ms RR within 14 days of today’s date.

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

IT IS NOTED that publication of this judgment by this Court under the pseudonym Rilak & Tsocas (No. 5) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2062 of 2010

Ms Rilak

Applicant

And

Mr Tsocas

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Ms Rilak has obtained the issuing of subpoena from the Court directed to Ms RR, who is a therapist who is dealing with their daughter B.  Both Ms RR and Mr Tsocas have made a notice of objection to production.  Mr Tsocas in his objection initially relied on the question of relevance.  The particular Application in a Case to which the application for production may be relevant relates to the mother’s Application in a Case to appoint an expert to assess B. 

2. The material that comes from B’s therapist is likely to be relevant to the question of the nature of any expert report that is required and whether that report is required, and so the question of relevance is not a reason to uphold the objection to the production of the subpoena.

3. The second leg, which is the one predominately relied upon by Ms RR, is that production of material on subpoena may damage the therapeutic relationship that exists between Ms RR and B.  In objecting to production Ms RR has not produced the material to the Court, hence the matter is not able to be effectively resolved today in a manner which would allow the parties to have access to the material and to progress with Ms Rilak’s application for the appointment of an expert. 

4. Moving to the objection on the basis of the effect that it may have on B, the objection is an atypical objection and it does not involve some form of claim of privilege, for example, which might be seen as to exclude production. In that sense it is out of the norm, however, I note the operation of s 69ZN of the Family Law Act 1975 which sets out the principles for conducting child-related proceedings. 

5. Subsection (1) says the Court must give effect to the principles in this section in performing duties and exercising powers in relation to child-related proceedings and in making other decisions about the conduct of child-related proceedings. 

6. Of the principles that the Court is then to have regard to, principle 1 appears to be salient to today’s application.  The first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings. 

7. What has been raised by Ms RR, and is now echoed by the father, is that should the Court exercise powers that compel the production of material that relates to the confidential interactions between B and Ms RR, this may have a profound impact upon B, and could cause the conduct of the proceedings to thereby have a profound impact upon B by undermining that therapeutic relationship that is in place. 

8. It is mandatory that I consider the needs of B in determining this application to deal with an objection to production.

9. The father alleges that he was not served with the Application in a Case that seeks the appointment of an expert.  It is unclear at present whether or not he was served.  He has chosen to argue the matter today, however, the issues that have arisen in respect of Ms RR and the need to deal with that question first means that the question of the appointment of the expert will need to be delayed so that relevant material, if it is to be produced, may be taken into account. 

10. The parties have agreed on a particular course of action then to dispose of the issues in relation to the subpoena and the appointment of an expert.  These will involve the adjournment of the application for the appointment of an expert and also the further adjournment of the application in respect of the production of material on subpoena.  They will however require Ms RR to produce material to the Court on the basis that it will not be released to the parties without further order from me. 

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 27 August 2018.

Associate: 

Date:  31 August 2018