Smirnov & Turova - [2009] FMCAfam 1083

FEDERAL MAGISTRATES COURT OF AUSTRALIA

SMIRNOV & TUROVA

[2009] FMCAfam 1083

FAMILY LAW – Practice and procedure – parenting proceedings – subpoena issued to counselling organisation – counselling organisation objecting to inspection of material forming subject of subpoena, but not objecting to issue of subpoena – where counsellor spoke with and conveyed information to mother's legal representative after completion of counselling process – where court referred parties for reportable counselling, and parties understood that they were involved in reportable counselling – where counselling organisation asserts that, irrespective of court's intention and the parties' knowledge and belief, counselling was privileged and confidential – whether inspection of material forming subject of subpoena should be permitted – whether counsellor who spoke with mother's legal representative should be authorised, permitted or compelled to give evidence regarding matters conveyed during discussion – whether inspection of material or disclosure of information authorised or permitted having regard to ss.10D & 10E of the Family Law Act 1975 (Cth).

Family Law Act 1975(Cth)

Centacare Central Queensland and Downing v G & K; Attorney General of the Commonwealth (Intervener) (1998) 23 Fam LR 476
Northern Territory of Australia v GPAO (1999) 24 Fam LR 253
Relationships Australia v Pasternak (1996) 20 Fam LR 604
Relationships Australia (Queensland) v M (2006) 37 Fam LR 12
Trapp v Vonne (2009) 41 Fam LR 471

Applicant:

MR SMIRNOV

Respondent:

MS TUROVA

Subpoenaed Party:

CENTACARE

File Number:

MLC 10410 of 2007

Judgment of:

Walters FM

Hearing date:

18 September 2009

Date of Last Submission:

18 September 2009

Delivered at:

Melbourne

Delivered on:

16 October 2009

REPRESENTATION

Counsel for the Applicant:

Mr Combes

Solicitors for the Applicant:

Spencer Law Partners

Counsel for the Respondent:

Ms Hannan

Solicitors for the Respondent:

Womens Legal Service Victoria

Counsel for the Independent Children’s Lawyer:

Ms Agresta

Solicitors for the Independent Children’s Lawyer:

David Stagg Tonkin & Co

Counsel for the Subpoenaed Party:

Ms Stoikovska

Solicitors for the Subpoenaed Party:

Moores Legal

ORDERS

Subject to paragraph 2 below, all parties have liberty to inspect the file produced to the Court by the Geelong Family Relationship Centre.
The order in paragraph 1 above be stayed until further order.
The father attend upon Dr K, psychiatrist for the purpose of a psychiatric assessment and report, and the father be responsible for the costs of the said assessment and report in the sum of $1,300.00 (including GST).
The said psychiatric assessment and report be released to the parties by no later than 4.00 p.m. on 14 December 2009.
The independent children’s lawyer do provide Dr K with copies of:
(a)all previous family reports; and
(b)any subpoenaed material.
All parties do file and serve a Minute of Interim and Final Orders Sought by not later than 4.00 p.m. on 18 December 2009.
Pursuant to s.62G(2) of the Family Law Act1975, the parties and the child [X] born in 2000 attend upon Ms Jay Manya, the Family Consultant (“the Family Consultant”) nominated by the Dispute Resolution Coordinator of 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.

Continue reading Smirnov & Turova

Details

AGLC: Smirnov & Turova [2009] FMCAfam 1083
Case: [2009] FMCAfam 1083
Decision Date: 16 October 2009

CaseChat Overview and Summary

Smirnov and Turova were the parties involved in a family law matter heard by the Federal Magistrates Court of Australia. The primary dispute centred around issues of child custody and welfare, involving their child [X] born in 2000. The court was required to make decisions regarding the best interests of the child, including the need for further psychiatric assessments and the preparation of a comprehensive family report.

The legal issues before the court included the necessity for the father to undergo a psychiatric evaluation, the preparation of an updated family report by a Family Consultant, and the management of procedural aspects such as document exchanges and interim orders. The court had to determine the appropriate steps to ensure the welfare and best interests of the child were prioritised, including the timeline for the psychiatric assessment and the detailed scope of the family report.

In its reasoning, the court mandated the father to attend a psychiatric assessment by Dr K, emphasising the importance of understanding the father's mental health status in the context of custody decisions. Additionally, the court ordered the independent children's lawyer to provide relevant documents to Dr K, ensuring that the psychiatrist had comprehensive information for the assessment. The court also appointed Ms Jay Manya as the Family Consultant to prepare an updated family report, detailing the child's views and other pertinent factors affecting the child's welfare. The court provided specific directives for document submissions to the Consultant and set clear timelines for these tasks. The matter was adjourned to allow time for these assessments and preparations, with a final hearing scheduled to ensure timely resolution.

The court's orders included the provision for all parties to inspect the case file, the stay of certain orders until further notice, and detailed instructions for document submissions and psychiatric assessments. The final orders mandated the father to attend a psychiatric evaluation, required the Family Consultant to prepare a comprehensive family report, and set specific timelines for these tasks. The matter was adjourned to allow for these assessments and preparations, with a final hearing scheduled for 15 February 2010.

Orders

Orders of the court

Subject to paragraph 2 below, all parties have liberty to inspect the file produced to the Court by the Geelong Family Relationship Centre.

The order in paragraph 1 above be stayed until further order.

The father attend upon Dr K, psychiatrist for the purpose of a psychiatric assessment and report, and the father be responsible for the costs of the said assessment and report in the sum of $1,300.00 (including GST).

The said psychiatric assessment and report be released to the parties by no later than 4.00 p.m. on 14 December 2009.

The independent children’s lawyer do provide Dr K with copies of:

(a) all previous family reports; and

(b) any subpoenaed material.

All parties do file and serve a Minute of Interim and Final Orders Sought by not later than 4.00 p.m. on 18 December 2009.

Pursuant to s.62G(2) of the Family Law Act 1975, the parties and the child [X] born in 2000 attend upon Ms Jay Manya, the Family Consultant (“the Family Consultant”) nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia, for the purposes of the preparation of an updated Family Report to be given to the Court prior to 22 January 2010, such Family Report to deal with the following matters:

(a) any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those views);

(b) the matters set out in ss.60CC, 61DA and 65DA of the Family Law Act 1975; and

The parties do comply with all reasonable directions as to attendance upon the Consultant as and when required by the Consultant.

Within 7 days of being notified of the Consultant, the solicitor for each of the parties do deliver or cause to be delivered to the Consultant copies of the following documents:

(a) all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;

(b) all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and

10.

If a party is not represented by a solicitor, then within 7 days of being notified of the Consultant that party do deliver or cause to be delivered to the Consultant copies of the following documents:

(a) all relevant applications and responses filed by him/her, or filed on his/her behalf, in the within proceedings;

(b) all relevant affidavits filed by him/her, or filed on his/her behalf, in the within proceedings; and

11.

The matter otherwise be adjourned to:

(a) 21 December 2009 at 9.45 a.m. in the Duty List; and

(b) 15 February 2010 at 10.00 a.m. for final hearing, with absolute priority (with an estimated hearing time of 4-5 days).

12.

In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the

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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