Hearne v Street

(a) Upon the parties' legal representatives and the Independent Children's Lawyer giving a written undertaking to the court, in the prescribed form, the parties' legal representatives and the Independent Children's Lawyer be provided with an electronic copy of the documents produced under subpoena.

(b) The legal representatives and the Independent Children's Lawyer be restrained from creating, disseminating or otherwise distributing copies of the subpoenaed documents (either electronically, in printed format, or otherwise) to their client or any other person, save for an agent, or such other person directed by the legal representative to complete the inspection on their behalf.

(c) Upon the completion of the final hearing, any copies of the subpoena material are to be destroyed and permanently deleted from any storage or retrieval system within 29 days (howsoever held by the lawyer, including by email, cloud storage or otherwise) of final orders, or in the event of an appeal, the finalisation of the appeal.

1. The subpoena material produced to the Court by the Second Objector on 8 April 2025 be electronically released to the parties' legal practitioners (including counsel) and the Independent Children's Lawyer in the following manner and on the following terms:

(a) Upon the parties' legal representatives and the Independent Children's Lawyer giving a written undertaking to the court, in the prescribed form, the parties' legal representatives and the Independent Children's Lawyer be provided with an electronic copy of the documents produced under subpoena.

(b) The legal representatives and the Independent Children's Lawyer be restrained from creating, disseminating or otherwise distributing copies of the subpoenaed documents (either electronically, in printed format, or otherwise) to their client or any other person, save for an agent, or such other person directed by the legal representative to complete the inspection on their behalf.

(c) Upon the completion of the final hearing, any copies of the subpoena material are to be destroyed and permanently deleted from any storage or retrieval system within 29 days (howsoever held by the lawyer, including by email, cloud storage or otherwise) of final orders, or in the event of an appeal, the finalisation of the appeal.

1. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public an account of family law proceedings which identifies a party to the proceedings, a witness in the proceedings, a person related to, or associated with, a party to the proceedings, or a person who is, or alleged to be, in any other way concerned in the matter to which the proceedings relate, unless specifically authorised by the court. Penalties may apply under section 114Q of the Family Law Act 1975 (Cth) to the communication of any material contained in the subpoena material other than for use in connection with the proceedings.
2. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.

1. Affected unrepresented parties may apply to the court and then to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

1. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.
2. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.

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 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. These are the settled reasons of a judgment delivered ex tempore. These reasons were delivered orally. These settled reasons have been corrected from the transcript where appropriate to correct grammatical errors, to add citations, passages of authorities and evidence, and to attempt to make the orally delivered reasons easier to read. The substance is unchanged.
2. In the matter of Davidson & Betts, the mother of the parties' two children, who are now aged almost four and almost nine, is engaged in litigation about the welfare of those children with the children's father. The parties are alleged to have cohabited for some time before separating in about January of 2020, though the date of separation is in dispute. Proceedings were issued on 15 March 2023. At issue in the proceedings is whether the children's father, Mr Davidson, ('the Father'), should be permitted to see the children on what I will refer to as an ordinary or everyday unsupervised alternate weekend basis, where he seeks to spend time with the children over three days, being Friday evening and Friday night, Saturday, Saturday night and Sunday, until returning the children to the care of their mother, Ms Betts ('the Mother').

1. The Father is 38 years. The Mother is 37 years. The Mother's position is that there should not be any time between the children and the Father at all. As part of these proceedings, at public expense, a family report was produced, and the family report writer made the following recommendations:

105. The children to continue to live with [Ms Betts].

1. [X], [Y] and [Z] to spend eight occasions of supervised time with [Mr Davidson] with such time supervised by the contact centre and the contact centre to provide the Court with independent reports about [Mr Davidson]'s and the children's time together.
2. If it is deemed that [Mr Davidson] does not present as an unacceptable risk to the children, and if there is no risk of exposure to [Mr Davidson]'s family violence perpetration, substance abuse issues and poor mental health, an incremental parenting plan is recommended for [X] and [Y] to commence spending unsupervised time with their father. Initially the children could spend four hours every Saturday with their father. This could progress to six hours after six weeks. After a further six weeks this could progress to incorporate an overnight stay and then after a further three months, the children could commence spending time with their father every second weekend from Friday afternoon to Monday morning. The father can pick the children from their school on Friday and drop them off at their school on Monday morning. Additionally, [Mr Davidson] could communicate with the children via Facetime each alternate Wednesday after school.
3. If it is deemed that [Mr Davidson] does not present as an unacceptable risk to the children, and if there is no risk of exposure to [Mr Davidson]'s family violence perpetration, substance abuse issues and poor mental health, [Z]'s therapist to recommend time progression between [Z] and [Mr Davidson].
4. The children to be supported to engage in therapy to address the underlying trauma that may be influencing their decisions with a long-term goal to include [Mr Davidson] in this therapy with a view to their reconciliation. Therapy could also focus on the impact of parental conflict on the children's wellbeing.
5. [Ms Betts] to also participate in counselling to support her to facilitate the children rebuilding relationships with their father.
6. The parents to do a parenting orders program.
7. The parents to attend individual counselling sessions with the copy of this family report provided to the counsellor.
8. [Mr Davidson] to engage with the Caring Dads program and [Ms Betts] to engage with the Positive Parenting Program.
9. [Mr Davidson] to furnish the court with his prescription for medicinal cannabis use.
10. Both parents to engage with family violence support services.
11. Both parents to undertake drug and urine screens or a Carbohydrate Deficient Transferrin test, to ascertain any current parental drug and alcohol concerns. If substance abuse is established, the parents would benefit from attending drug and alcohol counselling and seeking support from their GP to assist them to address their substance use issues.
12. The Court may consider a non-denigration clause to be beneficial in this matter.

1. I am not bound by the recommendations of a report, though it is customary that they are made, and they are of assistance to me.
2. The Mother alleges, and as I understand it, the Father denies, that she was subjected to family violence during the relationship, including coercive and controlling behaviour. The Mother alleges that after separation, back in 2020, she was subject to further coercive and controlling behaviour by the Father when he told her that he suffered a terminal cardiac condition and, in those circumstances, she alleges that he coerced her to agree to him living back in her home so that he could see the children. The substance of the Mother's case is that she was misled as to the extent of that illness, if it exists, or existed, at all. Here we are in 2025 and, self-evidently, a claim of suffering a terminal illness in 2020 fortunately, if accurate or truthful, has not been made out. In any event, the Father is very much alive. That is not the only allegation of family violence that the Mother makes.
3. The legislation requires me, unsurprisingly, to place considerable emphasis, in determining whether children should see their parents, upon their safety. Section 60CC(2) of the Family Law Act 1975 (Cth) ('the Act') provides that in determining what is in children's best interests, the Court must consider:

(a) what arrangements would promote the safety (including safety from being subjected to, or exposed to, family violence, abuse, neglect, or other harm) of:

(i) the child; and

(ii) each person who has care of the child (whether or not a person has parental responsibility for the child);

(b) any views expressed by the child;

(c) the developmental, psychological, emotional and cultural needs of the child;

(d) the capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child's developmental, psychological, emotional and cultural needs ;

(e) the benefit to the child of being able to have a relationship with the child's parents, and other people who are significant to the child, where it is safe to do so;

(f) anything else that is relevant to the particular circumstances of the child.

1. The Mother, in preparation for a trial listed before me quite soon, issued a subpoena back on 27 March 2025 to B Group Medical Clinic. The subpoena should have been addressed to the B Group, and there was some technical lack of precision in the person to whom the subpoena was directed. Those complaints at points 1, 2 and 3 of the objection lodged by B Group were not pursued before me. B Group retained lawyers and a briefed counsel to object to production of medical records of the Father in the hearing before me.
2. The family report had observed what the Father had said about his medical condition as follows:
   1. [Mr Davidson] advised that he is diagnosed with ADHD, PTSD and anxiety. He advised that he is also diagnosed with auditory psychosis, and he is currently attending therapy every fortnight through a psychologist at [B Group]. [Mr Davidson] informed that he also takes medication to treat his heart issues. He informed that he was advised that he will not be prescribed medication to treat his mental health because mental health medication will cause more damage to his heart. He advised that he is prescribed medicinal cannabis, and his mental health is currently being managed well. [Mr Davidson] informed that he is not aware of [Ms Betts]'s mental health history.
3. The Father alleges before me today, represented by a solicitor advocate who supports the objection of the B Group, that his reference for psychological counselling at the B Group has been successful and the successful hair follicle tests demonstrate that and that the Mother should accept the contentions contained within those hair follicle tests.
4. Before me today, there is no issue that the Father has, in fact, attended B Group for psychological counselling as ordered by this Court. Hence, there is no issue that, in fact, the Father in fact is, and has been, a patient of B Group.
5. One of the complaints regarding the subpoena is that it refers to a period from July 2020, which carries some ambiguity as to whether it means 1 July or 1 August - that is, including July or after July. I am satisfied that an ordinary reading by a literate person would interpret that as meaning from and including July (which would be 1 July 2020) to the date that the subpoena is complied with. The subpoena does not contain a cut-off date. The date that the person receiving the subpoena would comply with the subpoena is known within some parameters of a month or so, but not precisely. I am satisfied that a sensible reading of the subpoena as issued meant that the medical records available to B Group relating to the Father should be produced on subpoena.
6. I will order that the medical records, including of any psychological counselling and attendances by the Father and attendance records, should be produced as soon as practical. I will order that upon receipt of those documents, they be released to the parties' lawyers only, as well as the ICL. I have already discussed with the parties how serious it would be were the provisions of the Act as to production of material and/or the implied obligation, also known as the obligation in Hearne v Street [2008] HCA 36, to be breached, and that would include consideration of penalties that would include imprisonment. I have no evidence or reason to be concerned that the Mother would breach those requirements. Section 114Q provides the following:

Section 114Q Indictable offence--communication to the public of account of proceedings that identifies parties or others involved in proceedings

(1) A person commits an indictable offence if:

(a) the person communicates to the public an account of proceedings under this Act; and

(i) a party to the proceedings; or

(ii) a witness in the proceedings; or

(iii) a person who is related to, or is associated with, a party to the proceedings; or

(iv) a person who is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate.

Penalty: Imprisonment for 1 year.

...

1. In the context of the Mother's case and the statements that the Father makes - and I note there is no dispute that what has been reported is accurate about what the Father has said about his medical condition - and in the context of all of the considerations of section 60CC, in particular the issue the safety of the children, I am satisfied that the Mother has demonstrated a legitimate forensic purpose for the subpoena.
2. In coming to that conclusion, I have taken into account the authorities that I have been referred to, including paragraphs 47 and 48 of the Full Court decision of Vissell & Vissell [2021] FamCAFC 76, (2021) FLC 94-020. I also take into account the observations of the Full Court in the matter of Sadek and Ors & Hall and Anor [2015] FamCAFC 23, (2015) FLC 93-634:
   1. In the well-known decision of National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, Moffitt P identified the three steps in the procedure of having a third party bring documents to court pursuant to a subpoena and their use thereafter.
   2. The first step is the witness obeying the subpoena by bringing the documents to the court. At that stage the court should determine any application of the witness to the subpoena and any dispute concerning the production of the documents to the court. His Honour gave examples of the circumstances in which an application might be made and as one such example said at 382:

A witness might argue the documents must be sought for some undefined spurious reason, as they have no conceivable relation to the proceedings. The court would jealously consider any of such submissions having regard to the invasion of the private rights of the stranger occasioned by the operation of the subpoena.

1. The second step identified by Moffitt P was the consideration of the court granting access to the documents after their production to the court. At 384 Moffitt P said:

It is true that, in the exercise of the power in relation to the subpoena, the invasion of the rights of a third party have been jealously guarded. It is accepted that the documents should not go beyond the judge against objection of the owner, unless there is valid reason to do so. It is clear that it can only be legitimate to do so, so far as it is necessary in the proper conduct of litigation. It is difficult to see why to do that which is "requisite for the purpose of justice" should be restricted by some arbitrary limit. Of course, the concept of what is requisite for the purpose of justice, and how the compromise between the requirements of justice between litigants and the rights of a stranger should be met, may change and, indeed, be different now from the concepts of last century, just as concepts as to what is appropriate between parties has changed in favour of fuller disclosure of relevant matters.

...

So as far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger's documents can be to add, in the end, to the relevant evidence in the case.

1. The third step is the admission of such evidence as may be admissible into evidence.
2. In another equally well-known decision, namely Hatton v The Attorney-General (Cth) [2000] FamCA 892; (2000) FLC 93-038 at 87,606, the Full Court said "the present state of authority is such that lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena".

1. I also refer to the decision of Cronin J in Papadopoulos & Papadopoulos [2007] FamCA 1683 in regard to the issue of apparent relevance:
   1. In Ansett Industries Ltd v Commonwealth Marks J said that the purpose (of the Rule) is that of ordinary discovery, namely, to assist the administration of justice by minimising costs and facilitating the disclosure of information which would advance the fair determination of the issues. That has different words to the explanatory memorandum that came with the rules of this Court but the philosophical meaning must be seen as much the same.
   2. Other jurisdictions have taken a similar view that the production of documents by a non-party before trial advances the interests of justice by promoting settlement.
   3. The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determine that at an early stage? This issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors where Byrne J said:

The degree of relevance for this purpose is not high: the inspecting party need only show a legitimate forensic purpose in the inspection. A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.

1. Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.
2. The onus in establishing the relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.
3. In Hatton the Full Court supported the "apparent relevance" test. This is the same test referred to above by Byrne J. That latter case was a commercial one. It is hard to see how it could be argued that cases in the Family Court of Australia should be conducted on a more strenuous test basis than those as between strangers in a commercial cause. That is particularly so having regard to the philosophy that this Court has traditionally espoused in relation to disclosure.

1. Hence, the documents as described in the subpoena should be provided and, when produced, released for inspection on the usual terms.

1. I now turn to the issue of the subpoena objected to by C Medical Centre. C Medical Centre have produced what C Medical Centre regards as the medical file of the Father and were represented by solicitor and counsel at the hearing before me, who assisted with helpful submissions. There is no dispute that the Father has attended upon C Medical Centre.
2. The subpoena requested as follows:

Documents and things you must produce from your possession, custody or control

1. a copy of this subpoena

1. From July 2020; Copies of all files, notes, correspondence, memos, and other documents recording:
   1. Admissions, attendances, symptoms, diagnoses, medication, treatment or discharges in relation to [MR DAVIDSON] born [...] 1986.

1. The objection to that subpoena included the following:

[C Medical Centre] objects to both production and inspection of the Documents on the following grounds:

1. Relevance - The documents which are sought to be produced are not relevant to the proceeding.

2. No legitimate forensic purpose - The documents which are sought to be produced have no legitimate forensic purpose in the proceeding.

3. Oppressive - The documents which are sought to be produced are too broad and unconstrained and would otherwise require the addressee to make judgments about the relevance of documents to the issues in dispute.

In relation to each of the grounds identified it is [C Medical Centre]'s position that, having regard to the information provided to it, it opposes both the production and inspection of the Documents because they do not appear to have relevance to the proceeding before the Court and that the broad nature of the scope of the subpoena serves no legitimate forensic purpose and that it is otherwise oppressive because [C Medical Centre] is required to make judgments about the relevance of the documents to the issues in dispute in circumstances where there is little to no information about the matters in dispute from the party issuing the subpoena.

1. I accept that there is some imprecision in regard to the documents sought in the subpoena, and I am satisfied that given that the subpoena was directed to a hospital health service and being read by persons familiar with hospital and medical records, that the statement 'from July 2020' would mean from the start of July to the date of compliance with the subpoena. Now, it is impossible for the Mother to know when the Father last attended the hospital, but C Medical Centre would know and, I am satisfied, would have records that would demonstrate the same. I am satisfied that the wording of the subpoena actually, and clear enough, means to produce, from 1 July 2020 to date of compliance with the subpoena, copies of all medical files, including notes, correspondence, memos and other documents recording admissions, attendances, etcetera.
2. I am satisfied that C Medical Centre is not required to go any further as to identifying particular categories of medical records. In this case, I am satisfied that that would be an unfair burden upon C Medical Centre.

1. Hence, for the same reasons as I have recited in regard to what I will refer to as the B Group subpoena, I am satisfied that there is apparent relevance to the documents that have already been produced by C Medical Centre. Hence, the documents as described in the subpoena should be provided and, when produced, released for inspection on the usual terms. I am not satisfied that any further search or activity needs to be undertaken by C Medical Centre.
2. I repeat and refer to the comments I have made in regard to the B Group subpoena if there was to be any publication of those details or inappropriate use of them. It is, or should be self-evident, but I will restate section 114Q nonetheless:

Section 114Q Indictable offence--communication to the public of account of proceedings that identifies parties or others involved in proceedings

(1) A person commits an indictable offence if:

(a) the person communicates to the public an account of proceedings under this Act; and

(b) the account identifies:

(i) a party to the proceedings; or

(ii) a witness in the proceedings; or

(iii) a person who is related to, or is associated with, a party to the proceedings; or

(iv) a person who is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate.

Penalty: Imprisonment for 1 year.

...

I certify that the preceding twenty-three (23) numbered paragraphs are a true copy of the Ex Tempore Reasons for Judgment of Judge O'Shannessy.