Trapp & Vonne
[2009] FMCAfam 497
•25 March 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| TRAPP & VONNE | [2009] FMCAfam 497 |
| FAMILY LAW – Practice and procedure – other matters – subpoena to counselling organisation – production – objection – admissibility – public policy – legislation. FAMILY LAW – Costs. |
| Family Law Act 1975 ss.4, 10C, 10D, 10E, 60CC, 60CG, 60K, 69Z(2), 69ZW, 79, 117 Family Law Rules 2004, rr.1.05(3)(a), 2.04, 2.04B Federal Magistrates Court Rules r.1.05(3)(a) |
| Bell v Alfred Franks & Bartell Co. Ltd [1980] 1 All ER 356 Centacare Central Queensland and Downing v G and K [1998] FamCA 109; (1998) FLC 92-821; 23 Fam LR 476; 146 FLR 252 Chandless-Chandless v Nicholson [1942] 2 KB 321; [1942] 2 All ER 315 Relationships Australia Queensland v B and B [2005] FamCA 621 RelationshipsAustralia Queensland v M [2006] FamCA 1265; (2006) FLC ¶93-305; (2006) 204 FLR 440; (2006) 37 Fam LR 12. Relationships Australia v Pasternak (1996) FLC ¶92-699; (1996) 133 FLR 462; (1996) 20 Fam LR 604. Reynish v Martin [1746] EngR 755; 26 ER 991; (1746) 3 Atk 330 |
| Young, P, The Law of Consent (LBC, Sydney, 1986). |
| Applicant: | MS TRAPP |
| Respondent: | MR VONNE |
| Subpoenaed Party: | LIFEWORKS AUSTRALIA |
| File Number: | MLC 11648 of 2008 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 March 2009 |
| Date of Last Submission: | 25 March 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 25 March 2009 |
REPRESENTATION
| Counsel for the Applicant: | Ms L. Colla |
| Solicitors for the Applicant: | Leanne Cain & Associates |
| Counsel for the Respondent: | No appearance by or on behalf of the Respondent |
| Counsel for the Subpoenaed Party: | Mr P. Staindl |
| Solicitors for the Subpoenaed Party: | Clancy & Triado |
ORDERS
The subpoena issued to Lifeworks be struck out.
The Applicant pay Lifeworks’ costs as agreed and failing agreement, to be taxed in accordance with the Family Law Scale.
Payment of costs by the Applicant to Lifeworks be stayed until settlement of property adjustment orders between the Applicant and the Respondent.
Pursuant to rule 21.15 of the Federal Magistrates Court Rules 2001, the Court certifies that it was reasonable for the parties to employ an advocate.
AND THE COURT NOTES THAT:
A.The hearing of the matter did take an entire day.
B.The reasons for judgment be transcribed and placed on the court file.
IT IS NOTED that publication of this judgment under the pseudonym Trapp & Vonne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 11648 of 2008
| MS TRAPP |
Applicant
And
| MR VONNE |
Respondent
And
| LIFEWORKS AUSTRALIA |
Subpoenaed party
REASONS FOR JUDGMENT
(As revised from Transcript)
This case concerns a subpoena issued to Lifeworks for the production of documents contained in their files. These are described in the schedule to the subpoena as ‘all files, notes, records, documents and paper writings in relation to Ms Trapp, born in 1967 and Mr Vonne, born in 1966’. The date period referred to in the subpoena is ‘2003 until the present’.
The subpoena is opposed by Lifeworks, relying upon ss.10D and 10E of the Family Law Act 1975. There is no dispute between the parties that the attendances between the husband and wife at Lifeworks were for the purpose of ‘family counselling’ within the meaning of s.10D of the Act and that Lifeworks is a ‘family counsellor’ within the meaning of s.10C in that it is an approved counselling organisation listed in the Government Gazette by way of declaration by the Attorney-General on 29 January 2009.
The relevant provisions that require consideration are ss.10D and 10E which are in the following terms:-
10D (1) A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.
(2) A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3) A family counsellor may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person; or
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5) A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 ) for research relevant to families.
(6) Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the counsellor's evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.
(7) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(8) In this section:
"communication" includes admission.
…
10E (1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family counsellor conducting family counselling; or
(b) a person (the professional ) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c) in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(4) A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
Matters in Issue
Before turning to the questions of statutory construction it is appropriate that I first consider the nature of the proceedings which provide the context in which the subpoena has been issued.
Family law proceedings in this court, do not proceed by way of pleadings, therefore one must turn to the other documents in order to ascertain the ambit of the dispute or the matters in issue between the parties.
In this case, the second amended application, filed on 20 January 2009, seeks orders with respect to the time that the children spend with the parents and various other consequential parenting orders. In his response, the father similarly seeks orders with respect to parenting time and consequential orders. Nothing in the application or response bears directly upon the matters raised in ss.10D and 10E.
There has been no Notice of Risk of Child Abuse filed in this case, despite a requirement to do so if there is such a risk. That requirement is provided for in rule 2.04 and 2.04B of the Family Law Rules 2004 in the following terms:-
2.04. Definition
In this Division:
"allegation of abuse or family violence" means an allegation:
(a) that a child has been abused or that there is a risk of a child being abused; or
(b) that there has been family violence involving a child or a member of the child’s family or that there is a risk of family violence involving a child or a member of the child’s family.
"Part VII order" has the same meaning as in subsection 60I (1) of the Act.
2.04B Filing and service (1) In a case to which this Division applies, if any of the following persons makes an allegation of abuse or family violence the person must file a Notice of Child Abuse or Family Violence (Form 4):
(a) a party in the case;
(b) an independent children’s lawyer in the case;
(c) a person seeking to intervene in the case.
(2) A person who files a Form 4 must file an affidavit or affidavits setting out the evidence on which the allegations in the Form 4 are based, no later than the time the Form 4 is filed.
This rule applies in the Federal Magistrates Court as a result of Schedule 3 Part 1 of the Federal Magistrates Court Rules (see rule 1.05(3)(a)). The importance of R.2.04B is highlighted by the requirements of s.60K of the Family Law Act:
60K (1) This section applies if:
(a) an application is made to a court for a Part VII order in relation to a child; and
(b) a document is filed in the court, on or after the commencement of this section, in relation to the proceedings for the order; and
(c) the document alleges, as a consideration that is relevant to whether the court should grant or refuse the application, that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(iii) there has been family violence by one of the parties to the proceedings; or
(iv) there is a risk of family violence by one of the parties to the proceedings; and
(d) the document is a document of the kind prescribed by the applicable Rules of Court for the purposes of this paragraph.
(2) The court must:
(a) consider what interim or procedural orders (if any) should be made:
(i) to enable appropriate evidence about the allegation to be obtained as expeditiously as possible; and
(ii) to protect the child or any of the parties to the proceedings; and
(b) make such orders of that kind as the court considers appropriate; and
(c) deal with the issues raised by the allegation as expeditiously as possible.
(2A) The court must take the action required by paragraphs (2)(a) and (b):
(a) as soon as practicable after the document is filed; and
(b) if it is appropriate having regard to the circumstances of the case--within 8 weeks after the document is filed.
(3) Without limiting subparagraph (2)(a)(i), the court must consider whether orders should be made under section 69ZW to obtain reports from State and Territory agencies in relation to the allegations.
(4) Without limiting paragraph (2)(a)(ii), the court must consider whether orders should be made, or an injunction granted, under section 68B.
(5) A failure to comply with a provision of this section in relation to an application does not affect the validity of any order made in the proceedings in relation to the application.
A ‘Notice of Risk of Child Abuse’ is important, not only to engage s.60K but also in cases where arguments about the operation of s.10E arise as it will provide particulars of the precise allegations that would form the foundation of the considerations under s.10E.
Prima facie, a risk of child abuse is not an issue in proceedings, at least in the sense referred to in the Family Law Act 1975, if it has not been the subject of an appropriate notice under the rules.
This matter first came on before me a fortnight ago and was adjourned to enable Lifeworks to appear and present argument. This would have enabled the wife to file any further documents that were needed. She has not done so.
The wife has failed to comply with r.2.04B, and therefore not engaged s.60K. As the issues affect children I have allowed counsel to rely upon the relevant parts of the wife’s affidavit to particularise the ‘abuse’.
I nonetheless record that it is entirely inappropriate for a party to fail to file a ‘Notice of Risk of Child Abuse’ in a case where abuse or family violence allegations are relied upon as this is the mechanism that engages s.60K, effectively giving a case priority, and flagging it for urgent attention because of allegations that children are at risk. Had counsel for LifeWorks been taken by surprise I would have adjourned the application.
In the wife's affidavit she sets out a number of allegations against the husband. The relevant allegations by her are in the following paragraphs:-
7. There were a number of serious issues giving rise to the breakdown of our relationship and consequent separation. In essence, the respondent had a longstanding compulsive addiction to pornography. I needed to shield the children from knowledge of his problem. Unfortunately the respondent would even discuss sexual matters, including his fantasies, in front of the children, and ignored my pleas that it was abnormal and needed to stop.
8. We undertook extensive counselling in relation to this ongoing problem during the relationship, commencing in 2002. Unfortunately the respondent was unable to overcome his addiction. In addition, the respondent was repeatedly sexually violent towards me, and at times physically. The respondent had during the marriage been diagnosed as being obsessed with sexual matters. Lastly, the counsellor we consulted at Lifeworks, shortly after separation under the same roof, diagnosed the respondent as being a sex and pornography addict and as emotionally dysfunctional, requiring professional assessment and counselling. Ultimately the marriage broke down irretrievably.
…
13. I also tried to resolve issues directly with the respondent and this has proved very stressful for me as he has usually responded in an aggressive and bullying way including making unfounded and malicious remarks towards me. At times if the children were present or in hearing, they would become upset and distressed.
14. On one occasion at a school function the respondent became physically aggressive towards me in view of other parents and their children. Our children did not see this incident, which was precipitated by the respondent wishing to stop me from mentioning to my solicitors his predilection with pornography.
…
19. My prime concern is that the children are not placed in a position of emotional and psychological risk when in the care of their father, and I accordingly sought the above undertaking.
…
26. After the respondent moved he would tell he would be coming back to home and wanted to stay the night, in his room. I needed to strongly convey to him that this was not appropriate. He would still enter the house when dropping off the children and then refuse to leave until he felt like it. I did have the locks changed. He became infuriated and refused to leave until I gave him a copy of the new key. He became violent, he grabbed me, ripped off my necklace, grabbed me on the arms and shoulders. He verbally abused me. The children were present at the home, and I was so worried they would hear the altercation that I did give him a copy of the key so he would leave. However, I since changed the locks again for my security and peace of mind. The respondent is physically strong, 5’10” and much taller than me.
The wife argues that the counsellors may be able to provide evidence of admissions by the husband with respect to conduct of the type alleged. Counsel for the wife tendered psychiatric reports relating to both the parties. The opinion and recommendations of the psychiatrist after assessing the husband included the following statement:-
2. If the allegations against the husband of sexual violence are false then there are serious doubts about the credit of the wife and the entire history she provided. Diagnostic formulation in that context is impossible and may be indicative of serious character pathology.
It is obvious from this paragraph that there are very real forensic reasons for the wife’s desire to lead evidence of any admissions made by the husband to the family counsellor. However, it is clear from the context of the reports that the violence alleged is sexual violence against the wife, and outside the terms of s.10E.
The fact that it may be probative and compelling evidence, and the fact that it may be central to a very serious issue in the trial, does not warrant the court departing from the clear words of parliament in ss.10D and 10E: see Centacare Central Queensland and Downing v G and K [1998] FamCA 109; (1998) FLC 92-821; 23 Fam LR 476; 146 FLR 252. The provisions do not give a general discretion to the court but a limited one, to be exercised in accordance with the sections.
Application of s.10E
Counsel for the wife agreed that none of the paragraphs appears to make an allegation of abuse or risk of abuse of the type covered by the definition of abuse in the Family Law Act. The definition in s.4(1) is in specific limited terms:-
"abuse" , in relation to a child, means:
(a) an assault, including a sexual assault, of the child which is an offence under a law, written or unwritten, in force in the State or Territory in which the act constituting the assault occurs; or
(b) a person involving the child in a sexual activity with that person or another person in which the child is used, directly or indirectly, as a sexual object by the first‑mentioned person or the other person, and where there is unequal power in the relationship between the child and the first‑mentioned person
I note that whilst the term ‘abuse’ for the purpose of s.10E has a narrow definition, the definition of ‘family violence’ as it appears in s.4 is far wider:
"family violence" means conduct, whether actual or threatened, by a person towards, or towards the property of, a member of the person's family that causes that or any other member of the person's family reasonably to fear for, or reasonably to be apprehensive about, his or her personal wellbeing or safety.
Note: A person reasonably fears for, or reasonably is apprehensive about, his or her personal wellbeing or safety in particular circumstances if a reasonable person in those circumstances would fear for, or be apprehensive about, his or her personal wellbeing or safety.
On the material therefore it is difficult to see that there is an issue relating to ‘abuse’ or ‘risk of abuse’ of one of the children as is contemplated by s.10E(2): that is, there is no material before the court, either making the allegation nor evidencing an allegation that there is a child who has been abused or at risk of abuse within the definition of ‘abuse’ in s.4. This is not to say that the material does not contain a number of matters that would be within the meaning of ‘family violence’, and if proved, significant in making a proper decision about parenting of the children within the considerations set out in Pt VII of the Family Law Act 1975, and in particular s.60CC, s.60CG and s.69ZW (which sections refer to both ‘abuse’ and ‘family violence’).
A further difficulty that confronts the wife in this application is that there is a rider clause in s.10E which requires the court to consider whether there is sufficient evidence of an admission or disclosure available to the court from other sources. As Carmody J explained in RelationshipsAustralia Queensland v M [2006] FamCA 1265; (2006) FLC ¶93-305; (2006) 204 FLR 440; (2006) 37 Fam LR 12, this is an investigation that would ordinarily be considered on a voir dire at a trial (at [32]). There are good practical reasons for this: it is only at the point of trial that the court would be aware of what other evidence was actually available and intended to be led in order to make the decision as to whether or not there was ‘other sufficient evidence’ so as not to require an opening of the seal of confidentiality that would otherwise apply to the counselling sessions. It therefore appears that the mother's application with respect to s.10E is premature.
For these reasons I am not persuaded that the wife has established that there is a real question as to the admissibility of the counselling notes under s.10E in that:
a)there is no notice of risk of child abuse;
b)she does not allege child abuse within the meaning of section 4 in her material; and
c)the application is clearly premature in that the court is not yet in a position to be able to determine whether or not there is “sufficient evidence of the admission or disclosure available to the court from other sources”.
To the extent that the wife relies upon s.10E to found her subpoena today, directly or indirectly, it appears to me that as at today at least it is not open to her.
Application of s.10D
Counsel falls back upon an argument with respect to the operation of s.10D. There are circumstances provided for in the section for disclosure. Section 10D(2) makes provision for disclosure to comply with a law of the Commonwealth, a state or territory. In this respect it seems arguable that a subpoena issued by the court requires disclosure in accordance with a law of the Commonwealth and would prima facie bring the wife within s.10D(2).
However, the court has always been careful to control the use of subpoenas, as is discussed in the cases dealing with the predecessors of this particular section: for example, see Relationships Australia v Pasternak (1996) FLC ¶92-699; (1996) 133 FLR 462; (1996) 20 Fam LR 604.
The material subpoenaed does not, at this time, appear to be prima facie admissible under s.10E. In this case, it appears clear that the wife is aware of what may have been said to the counsellor and that is the reason that she is pursuing an application to obtain the counsellor's records. It cannot be said that the information contained within the counsellor's documents would enable her to better prepare her case in that she is already aware of the substance of the content, assuming that it accurately reflects what was said.
What then can be said to be the proper purpose of the subpoena issued in this court? A proper purpose is not apparent at this time. If there is not a proper purpose for the subpoena it ought to be struck out. Once the subpoena falls, counsel's argument attached to s.10D(2) also falls.
Counsel for the wife also referred to s.10D(3) which provides permission for the counsellor to disclose the statements of a person if consent is given by the person who made the communication. The wife says she consents to disclosure of what she said. However, the relevant material that the wife seeks is the communications made by the husband.
The husband has not attended today and has not taken part in the argument relating to the subpoena. It was argued that I should equate his non-attendance and non‑participation with his consent to the disclosure. I do not accept such an argument. Potentially there may be some argument that he would be acquiescing if knowing of the subpoena he chose not to participate, but it appears to me that consent is an active decision by a person and that I could not infer consent from his non-participation in the proceedings. For example, an order made in default of appearance would never be considered a 'consent order'. This is because mere acquiescence does not involve a decision: see, for example, Reynish v Martin [1746] EngR 755; 26 ER 991; (1746) 3 Atk 330; Bell v Alfred Franks & Bartell Co. Ltd [1980] 1 All ER 356, and Chandless-Chandless v Nicholson [1942] 2 KB 321; [1942] 2 All ER 315; cf. Young, P, The Law of Consent (LBC, Sydney, 1986) at 22 to 25.
For these reasons, the wife cannot succeed under s.10D(3) in showing that the communications could be disclosed under that sub-section.
Section 10D(4) provides for a discretion to the counsellor to disclose information if the counsellor reasonably believes that disclosure is necessary for one of the purposes set out in the section. These purposes are protecting persons and children from imminent risks or threats, or ensuring the proper authorities are aware of the commission of offences involving violence or threats of violence. The counsellor is not obliged to exercise that discretion under s.10D(4). However, I note that the counsellor does have certain obligations under s.69Z(2).
In this case it is disclosed in the psychiatric reports that the wife has already made a complaint to the police with respect to the assaults she alleges. It does not appear to me that there is, in those circumstances, likely to be any obligation (professional or otherwise) on the counsellor to communicate the issues raised to the police or others, because the wife has already done so.
It is also argued that the counsellor can disclose information to the independent children's lawyer. However, there is not an independent children's lawyer appointed in the case at present; thus, at this time that argument does not assist the wife. How disclosures to the independent children's lawyer would ultimately assist the wife is not clear to me. Even if the independent children's lawyer was told of what was said during the counselling section it does not then make the statements admissible in evidence before the court.
A further difficulty that confronts the wife with respect to this section is that there does not appear to be a power for the court to review the conduct of the counsellor in forming the opinion as to whether or not the counsellor reasonably believes that disclosure is necessary for the purpose of the section, nor whether or not facts and circumstances are such that the counsellor ought to or could be compelled to make that disclosure.
The Family Law Act 1975 provides the court with many powers but it does not appear to provide a general power to control the exercise of the discretion of family counsellors working in non-government agencies, acting in their capacity of providing family counselling as defined under the Act.
For these reasons, I am not persuaded that the subpoena has a proper purpose, nor that LifeWorks could be compelled to disclose the material, nor that it would be proper to require disclosure.
I therefore order that the subpoena issued to Lifeworks be struck out.
[argument ensued with respect to costs]
Costs
Lifeworks seeks an order for costs with respect to the subpoena that was set aside. The matter has taken a substantial time to hear as both parties have analysed, in considerable detail, the provisions of ss.10D and 10E of the Family Law Act 1975, in the context of a number of cases decided under previous versions of those sections.
Counsel for the wife suggested that costs with respect to these parties ought not to be governed by s.117 of the Family Law Act 1975 relying upon with comments made by Carmody J in RelationshipsAustralia Queensland v M [2006] FamCA 1265; (2006) FLC ¶93-305; (2006) 204 FLR 440; (2006) 37 Fam LR 12. His Honour indicated at [17] that s.117 only applies to the parties. It seems to me that on the argument with respect to the subpoena, the parties are properly described as being the party subpoenaed, the husband, and the wife, and therefore s.117 applies.
Given that there is no other power conferred upon the Family Court to order costs, it is difficult to understand what power there would have been for costs orders in the proceedings before Carmody J. The result is that it is appropriate to deal with the question of costs under s.117.
I note that under those more general costs provisions, costs would ordinarily follow the event unless there was some reason to make some other order and therefore in this case the subpoenaed party would be entitled to its costs. However, in my view it is appropriate that I analyse this case in terms of s.117 which provides for parties to bear their own costs unless otherwise ordered. The relevant matters are set out in s.117(2A).
I have regard to the financial circumstances of the parties. The wife in this case receives her only income by way of spousal maintenance from the husband of $500 per week and has children to care for. The property pool of the parties appears to be worth around $973,500. It is not entirely clear whether or not the house of the parties is said to be worth half a million dollars or a million dollars. I therefore take a cautious approach and adopt a figure of $550,000 from the financial statement as representing the full value of the home in the absence of clear evidence to the contrary, rather than $1.1 million.
This means that the parties between them have around $500,000 worth of presently available assets and $70,000 worth of superannuation. Offset against that are debts of around $54,000. This is, it seems to me, even on a property split that may be slightly more favourable or less favourable to the wife, (depending upon the husband's income and the arrangements for the children) in all likelihood a situation where she will be receiving well in excess of $100,000 in the property case; indeed, far in excess of that in all likelihood.
The party subpoenaed is Lifeworks which is a non-profit agency established for the purpose of providing relationship counselling and other similar services to the community at large. It applies what moneys that it has to the provision of those services, which are always in strong demand in the community. Whilst I do not know of its precise budget and funding from government, the practical reality is that every dollar it expends attending on subpoenas such as this, is a dollar that it does not have available to provide counselling or other services in that vein to families in crisis in the community.
It is not said that the parties are legally aided. There is not said to be costs incurred by failure to comply with previous orders. With respect to the conduct of the parties to the proceedings, it does not appear to me that either party has conducted themselves in a way that would cause unnecessary costs. When the matter came before me some weeks ago it was adjourned to today to allow proper argument, given the nature of the issues. The failure of the wife to file a notice of risk of child abuse has not added to the costs in this case.
The wife has been wholly unsuccessful on this subpoena issue. The other party has made offers in writing on previous occasions - 10 February and 23 March - putting the wife on notice and requesting that she withdraw her subpoena, otherwise they would be seeking costs. The wife has therefore been in the position of being able to withdraw the subpoena without any liability for costs. She has chosen not to do so.
The state of the wife's material did not lend itself well to the arguments that were needed to be put. Indeed, on a careful reading of ss.10D and 10E, as well as reflection upon the real forensic purpose of the evidence, it must have been apparent that she was unlikely to succeed.
Having regard to all of the factors in s.117(2A), it seems to me that it is appropriate that the wife pay the costs of Lifeworks. In this regard I also note the reasons of Jordan J in Relationships Australia Queensland v B and B [2005] FamCA 621, where, in a similar situation, his Honour said:-
27. Relationships Australia is not only a third party to the proceedings, and therefore introduced to the process without any direct interest in the matter, it is an organisation which provides an essential service to the community and the litigants in this Court. In my view, it would be inappropriate that such an organisation be out of pocket to defend what the legislature had already clearly put in place. Consistent with my judgment, I propose to order that the [the party issuing the subpoena] pay the costs of Relationships Australia of and incidental to the issue of the subpoena and to the subsequent proceedings.
I therefore order that the wife pay the subpoenaed party's costs. As the wife’s entitlements to property are the likely source of funds to meet this order I will stay the costs order until the conclusion of the s.79 proceedings.
I certify that the preceding forty-eight (48) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Deputy Associate: Katherine Sudholz
Date: 24 April 2009
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