Wenlack and Cimorelli

[2013] FamCA 602

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI [2013] FamCA 602

FAMILY LAW – PRACTICE & PROCEDURE – where the wife sought access to material produced to the court by the parties’ marriage counsellor – where the husband raised objection to the inspection of the material produced – where the onus was on the husband to establish that the parties’ marriage counsellor is a family counsellor within the meaning of the Act – where the husband was unable on the evidence to do so – where there is no basis to find that the parties’ marriage counsellor is a family counsellor within the definition of the Act and consequently the prohibition of disclosure contained within s 10D does not apply – where the husband also sought to raise public interest immunity – where it was determined that an immunity against production of the documents for inspection does not apply in this case –  Fritze & Fritze & New England Area Health [2006] FamCA 232 applied.

Family Law Act 1975 (Cth) ss 10B, 10C(1), 10D(1)
Evidence Act 1995 (NSW) s126B
Evidence Act 1995 (Cth) s 135

Unitingcare-Unifam Counselling & Mediation & Harkiss and Anor 2011 FamCAFC 159
Jermyn & Carling [2012] FMCAfam 814
Relationships Australia & Pasternak & Pasternak & Children's Representative (1996) FLC 92-699
Feinster & Feinster and Anor [2006] FamCA 232

APPLICANT: Mr Wenlack

RESPONDENT: Ms Cimorelli

FILE NUMBER: SYC 2881 of 2013

DATE DELIVERED: 13 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Aldridge

HEARING DATE: 13 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Devere

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. That leave is granted to the legal representatives of the parties to inspect subpoena material produced by Ms B, Clinical Psychologist. 

2. That leave is granted to the legal representatives of the parties to inspect subpoena material produced by C Childcare Services.

3. That I stand this matter over, before myself for an interim hearing, at 10 am on Friday 16 August 2013.

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

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2881 of 2013

Mr Wenlack

Applicant

And

Ms Cimorelli

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. The wife has served a subpoena upon Ms B who provided marriage counselling services to the parties.  The wife seeks access to the material produced to the court by Ms B and that access is opposed by the husband.

3. Save for the reference to family counsellor contained in s 10B of the Family Law Act1975 (Cth) (“the Act”) counsel for the wife accepts that the services provided by Ms B involved a process of her dealing with personal and inter-personal issues in relation to a marriage.

4. Section 10B describes family counselling as a process…