Does s 121 Family Law Act 1975 (Cth) prohibit family law documents being produced into the public domain?
I was recently involved in a medical negligence matter, where the plaintiff in the medical negligence matter and and applicant in the family law matter, were the same person. The insurer in the medical negligence matter subpoenaed the family law documents, when the matter was still on foot, which was opposed by the plaintiff in the medical negligence claim.
What was the Courts view to the production of family law documents, in such circumstances?
The usual lines of argument to set aside a subpoena were submitted, which included:
- Fishing expedition – substitute for discovery
- Not relevant to the medical negligence claim
- Abuse of process
- Children would be collateral damage if material allowed into the public domain
- Principles of ss 56-58 Civil Procedure Act
Section 121 Family Law Act 1975 (Cth) (“The Act”)
A judicial determination will be made to the usual arguments in respect to setting aside a subpoena based upon relevance, fishing etc. However, after consideration of s 121 The Act, if the Judicial Officer orders production of relevant family law documents, the exception in s 121 (g)(3)(a) does not impede such a course. The Court could order the documents be delivered to the relevant Court in a sealed envelope, as s 121 The Act does not provide a general prohibition on publication or a blanket rule for non publication, production needs to be determined in context.
In summary, there is room for opposing family law documents being produced under a subpoena for production, for use in other jurisdictional proceedings, with the usual submissions made to set aside a subpoena. However, it must be born in mind that if s 121 The Act is relied upon in submissions resisting production, the exception in s 121(3)(g)(a) will provide the court with power to order production and does not provide a general prohibition in respect to production.
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