West and West (No 2)

[2015] FamCA 993

FAMILY COURT OF AUSTRALIA

WEST & WEST (NO 2) [2015] FamCA 993

FAMILY LAW – PROCEDURE – where organisation served with subpoena opposes to the production of the material – discussion of legal professional privilege – discussion of section 10J – where counsel argued against the disclosure of confidential information – where the subpoena is set aside to the extent that the materials covered by the subpoena are of documents relating to records of communications between the father and persons who are not family dispute resolution practitioners in relation to allegations of domestic violence.

Family Law Act 1975 (Cth) s 10J

APPLICANT: Mr West

RESPONDENT: Ms West

INTERVENOR: Mr Cuthbertson

INDEPENDENT CHILDREN’S LAWYER: Mr Newman

FILE NUMBER: CSC 609 of 2014

DATE DELIVERED: 18 August 2015

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 18 August 2015

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms Wilson

SOLICITORS FOR THE RESPONDENT: West Family Law

COUNSEL FOR INDEPENDENT CHILDREN’S LAWYER: Mr Victoire

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER: Newman Family Law

Orders

1. I direct that the solicitors for Relationships Australia within 24 hours make available to the Court by way either facsimile or email a copy of any documents that fall within the exception to the setting aside of the subpoena or alternatively make, file and serve an affidavit deposing to the non-existence of such documents.

IT IS NOTED that publication of this judgment by this Court under the pseudonym West & West (No 2) 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 CAIRNS

FILE NUMBER:  CSC 609 of 2014

Mr West

Applicant

And

Ms West

Respondent

RULING

1. The father has sought leave to lead further oral evidence-in-chief from his mother Ms Y West.  The matters which he has explained to me he wishes to lead from her are already covered by her affidavit or, if it be the case that some of them are not specifically detailed in that affidavit, are not matters that have occurred since 2 April 2015 when that affidavit was filed.  Rather, what it appears as though the father wants to do is to emphasise by oral evidence some of the more grave allegations that are advanced by his mother in her affidavit. 

2. That is not the purpose of examination-in-chief in proceedings where evidence-in-chief is given by way of affidavit.  The opportunity for emphasis was in the affidavit, not orally.  However, in the event that the father has some questions which genuinely arise out of the cross-examination of Ms West, either by Mr Victoire or Ms Wilson, then he may do so.

3. The father has had leave to issue a subpoena addressed to Relationships Australia.  The documents sought by that subpoena were:

   Copies of all records held by Relationships Australia including but not limited to notes, files, reports, records, complaints, phone and complete records of emails etcetera, correspondence and all forms of documents and all documents discussing my complaints about Relationships Australia.  All correspondence concern (sic) my many complaints concerning Relationships Australia held in relation to the father, the mother and their three children.

4. Relationships Australia opposes the production of any documents pursuant to that subpoena.  However, during the course of argument, Mr Cuthbertson, who appeared as solicitor for Relationships Australia, conceded that insofar as there may be documents held by that organisation which are not disclosures by the father to accredited family dispute resolution practitioners under the Accreditation Rules, that those documents would be amenable to production, assuming they exist.  In that context, the father alleges that he has made disclosures of being the victim of family violence to at least two, and he asserts many other, members or staff of Relationships Australia. 

5. As to the balance of the documents, Mr Cuthbertson asserts that they fall into two or perhaps three categories.  The first would be documents relating to the father’s apparent complaints against Relationships Australia and particularly their alleged divulging of confidential information.  As to that, Mr Cuthbertson says that such documents are irrelevant because they have nothing to do with the forensic issues in this case.  I agree. 

6. He says the second group of documents would be documents or material covered by section 10J of the Family Law Act, being matters said to, or an admission made by or in the company of, a family dispute resolution practitioner or a medical practitioner to whom the person has been referred. It seems plain that indeed such documents would potentially be within the Relationships Australia file and it is plain that section 10J would prohibit their admission into evidence.

7. I accept that, absent unusual circumstances, that prohibition on them coming into evidence would inform whether or not a party should be obliged to answer a subpoena to produce documents which would otherwise be admissible. I therefore accept that, to the extent that documents within the Relationships Australia materials, are covered by section 10J of the Family Law Act, they should not be required to be produced pursuant to subpoena.

8. The third group of documents are those which are covered by legal professional privilege.  It appears, although there is no evidence to this effect, that the father has made complaint to a relevant statutory authority in relation to the divulging of confidential information by Relationships Australia to the mother.  I do not know whether that is true or not, but it appears as though Relationships Australia received some form of complaint and instructed Mr Cuthbertson’s firm to act for it in relation to that.  Plainly, such material would be covered by legal professional privilege and ought not to be made available to the father under subpoena.

9. I am therefore satisfied that, save and except to the extent that the materials covered by the subpoena are of documents relating to records of communications between the father and persons who are not family dispute resolution practitioners in relation to allegations of domestic violence, that they are not required to be produced pursuant to the subpoena and the subpoena will be set aside to that extent.

I certify that the preceding nine (9) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 18 August 2015.

Associate: 

Date:  18 August 2015