Telfer & Telfer

[2021] FamCA 285

FAMILY COURT OF AUSTRALIA

Telfer & Telfer [2021] FamCA 285

File number(s):	BRC 5098 of 2020
Judgment of:	HOGAN J
Date of judgment:	10 May 2021
Catchwords:	FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Notice of Objection.
Legislation:	Family Law Act 1975 (Cth)
Number of paragraphs:	6
Date of hearing:	4 May 2021; Orders made 6 May 2021; Reasons published 10 May 2021
Place:	Brisbane
Counsel for the Applicant:	Mr Shoebridge
Solicitor for the Applicant:	Evans Brandon Family Lawyers
Counsel for the Respondent:	Mr Alexander
Solicitor for the Respondent:	Pullos Lawyers

ORDERS

BRC 5098 of 2020
BETWEEN:	MS TELFER Applicant
AND:	MR TELFER Respondent

ORDER MADE BY:	HOGAN J
DATE OF ORDER:	6 MAY 2021

IT IS ORDERED THAT

1.The Notice of Objection directed to the Proper Officer, B Psychology, sealed 23 April 2021, is dismissed.

NOTATION

A.For the avoidance of doubt, the legal representatives for the parties have leave to inspect the documents produced by the Proper Officer, B Psychology.

AND IT IS FURTHER ORDERED THAT

1.The objection taken in the Notice of Objection sealed 23 April 2021 in relation to the production by Ms D of documents particularised at Item 2(i) of the subpoena to Ms D dated 22 April 2021, is dismissed.

2.The objection to production by Ms D of documents listed at items 2(a) – (h) inclusive of the subpoena directed to Ms D dated 22 April 2021, is adjourned to the trial commencing on 10 May 2021.

NOTATION

A.The Court notes that a consequence of the Order made today is that Ms D is required, by virtue of Item 2(i) of the Schedule at Part E of the subpoena to her dated 22 April 2021, to produce to the Court a copy of accounts rendered by her to either Ms Telfer, born … 1986, or Mr Telfer, born … 1975, for services conducted by her pertaining to either or both of Ms and Mr Telfer.

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

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 17.02 Family Law Rules 2004 (Cth).

IT IS NOTED that publication of this judgment by this Court under the pseudonym Telfer & Telfer has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Hogan J

1. By subpoena dated 22 April 2021 Ms Telfer sought that B Psychology (a practice upon whom the child Z has been attending for counselling) and Ms D (a therapist upon whom she and the father have previously attended) produce documents.

2. Mr Telfer objected to the production of documents in each case.

3. Last week I made an order dismissing Mr Telfer’s objection to the subpoena issued to B Psychology, dismissing an aspect of the objection to the subpoena issued to Ms D’s and adjourning the balance of the subpoena issued to Ms D to the trial to commence today.

   B Psychology

4. I dismissed Ms Telfer’s objection to the subpoena issued to B Psychology because, in essence, I preferred the submissions made on Ms Telfer’s behalf to those made on Mr Telfer’s behalf.

5. The matters which particularly persuaded me to act as I did in dismissing Mr Telfer’s objection to the subpoena directed to B Psychology included:

   (a)that the parents do not agree that Z’s engagement with that service amounts to him receiving confidential counselling; and

   (b)the parties disagree about the reasons why it was thought Z would be assisted by engaging with a therapist at that service:

   (i)Mr Telfer advanced that Z needed to engage in therapy because he was unmotivated, experiencing issues at school and had demonstrated a poor attitude to his studies;  whereas

   (ii)Ms Telfer advanced that there was high conflict between Z and his father and that Z’s behaviours were consequent upon, or reactive to, the father’s parenting style; and

   (c)given that the parents agreed Z would benefit from counselling - but were not agreed about why - I considered that input from the therapist, via notes of Z’s attendances to date, likely to assist in determining matters such as: whether it is in his best interests to continue in the therapeutic relationship; the purpose of any therapeutic engagement; whether there are existing issues in his relationships with either parent that impact upon the terms of parenting orders to be made in his best interests; and

   (d)that more contemporaneous input from Z’s therapist is likely to support Mr G’s evidence and/or assessment, given that he interviewed Z about six months ago – it will also mean that Mr G’s opinion can, potentially, be sought on the basis of more contemporaneous information contained within the service’s notes; and

   (e)I considered that the determination of those parenting orders that are in Z’s best interests was more likely to be aided by receiving more contemporaneous information from the therapist about Z and his current functioning.

   Subpoena to Ms D

6. As noted earlier, last week I dismissed Mr Telfer’s objection to the subpoena issued to Ms D insofar as it related to her production of invoices issued to the parties and otherwise adjourned the balance of the same for consideration to trial.  I did so for the following reasons:

   (a)the parties are in factual dispute about the nature of Ms D’s engagement and nature of the matters communicate to her during the various sessions which occurred on various occasions between about 2008 until about late 2019;  and

   (b)given this, I considered that the provision of invoices or accounts may shed light on Ms D’s classification of the services provided to the parties over time and whether the nature of the same is constant or differs, noting her information that she had provided them with Family Dispute Resolution services, although she did not sign the section 60I certificate;  and

   (c)as the information contained within the accounts or invoices is not a communication Ms D received during Family Dispute Resolution, I could see no valid basis for objection to the provision of the same, irrespective of whether the other statutory requisites of sections 10F and 10H(1) are established.

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Hogan.

Associate:
Dated:       10 May 2021