Waldman and Waldman - [2013] FCCA 1035

FEDERAL CIRCUIT COURT OF AUSTRALIA

WALDMAN & WALDMAN

[2013] FCCA 1035

Catchwords:
FAMILY LAW – Declaratory relief – unnecessary to make declaration – order made permitting release of family report to a psychiatrist in relation to criminal proceedings.

Legislation:

Family Law Act 1975, ss.62G, 121(1), 121(3), 121(9)(a), 121(9)(d)

Federal Circuit Court of Australia Act 1999, s.16

Re Edelsten (a bankrupt); Donnelly v Edelsten and Others (1988) 12 FamLR 294
AH & SS [2005] FamCA 854, (2006) 34 FamLR 24
Jenkins v NZI Securities Australia Ltd and Others (1994) 124 ALR 605
R v Howe (1978) 19 SASR 303; 4 Fam LR 166
Foster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
In re Judiciary and Navigation Acts (1921) 29 CLR 257
Russian Commercial and Industrial Bank v British Bank for Foreign Trade Ltd [1921] 2 AC 438
University of NSW v Moorhouse (1975) 133 CLR 1
Gardner v Dairy Industry Authority (NSW) (1977) 52 ALJR 180
Aussie Airlines Pty Ltd v Australian Airlines Ltd (1996) 139 ALR 663

Applicant:

MS WALDMAN

Respondent:

MR WALDMAN

File Number:

BRC 8571 of 2012

Judgment of:

Judge Lapthorn

Hearing date:

22 March 2013

Date of Last Submission:

12 July 2013

Delivered at:

Brisbane

Delivered on:

6 August 2013

REPRESENTATION

Counsel for the Applicant:

N/A

Solicitors for the Applicant:

Shannon Donaldson Province Lawyers

Counsel for the Respondent:

N/A

Solicitors for the Respondent:

Best Wilson Family Law

ORDERS

That the Father be at liberty pursuant to section 121(9)(d) to provide the Affidavit of Ms C filed 20 December 2012 including all annexures thereto to the Psychiatrist retained by him to provide an assessment of him for use in pending criminal proceedings arising from events on 8 March 2013.

IT IS NOTED that publication of this judgment under the pseudonym Waldman & Waldman is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT TOOWOOMBA

BRC 8571 of 2012

MS WALDMAN

Applicant

And

MR WALDMAN

Respondent

REASONS FOR JUDGMENT

Introduction

On 22 March 2013 I gave leave for the Respondent father to make an oral application for an order permitting the publication, pursuant to section 121(9)(d) of the Family Law Act 1975, of an affidavit filed in the substantive proceedings to a psychiatrist he has retained to provide an assessment for use in his upcoming criminal proceedings. This affidavit annexed a report from a family therapist and family consultant retained by the parties for the purposes of assisting them and the Court in relation to their parenting dispute. Although the report was not one prepared pursuant to s.62G the author of the report is a Regulation 7 Family Consultant and has styled the report as a Family Report. I will refer to it as such throughout these reasons.

Orders Sought

The father sought orders that provided for:
a)A Declaration that by virtue of section 121(9)(a) he was not restricted from disclosing the family report to…

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 Waldman and Waldman

Details

AGLC: WALDMAN & WALDMAN [2013] FCCA 1035
Case: [2013] FCCA 1035
Decision Date: 6 August 2013

CaseChat Overview and Summary

In *Waldman and Waldman*, the Father sought leave from the court to provide an affidavit, including its annexures, to a psychiatrist retained for his assessment in pending criminal proceedings. The proceedings arose from events that occurred on 8 March 2013.

The primary legal issue before the court was whether the Father should be granted liberty to provide the specified affidavit and its annexures to his psychiatrist, pursuant to section 121(9)(d) of the relevant legislation. This section likely pertains to the disclosure of documents in family law proceedings.

The court granted the Father liberty to provide the Affidavit of Ms C, filed on 20 December 2012, along with all its annexures, to the psychiatrist retained for his assessment. This decision was made to facilitate the psychiatric assessment for use in the criminal proceedings.

Orders

Orders of the court

That the Father be at liberty pursuant to section 121(9)(d) to provide the Affidavit of Ms C filed 20 December 2012 including all annexures thereto to the Psychiatrist retained by him to provide an assessment of him for use in pending criminal proceedings arising from events on 8 March 2013.

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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