Alba and Alba and Ors

[2021] FCWA 188

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY LAW ACT 1975

LOCATION: PERTH

CITATION: ALBA and ALBA & Ors [2021] FCWA 188

CORAM: DUNCANSON J

HEARD: 18 OCTOBER 2021

DELIVERED : Ex tempore

FILE NO/S: 110 of 2013

BETWEEN: MR ALBA

Applicant

AND

MRS ALBA

First Respondent

MS OLSEN

Third Respondent

MR OLSEN

MRS OLSEN

Fourth Respondents

Catchwords:

PRACTICE AND PROCEDURE - Subpoena to children's treating practitioners - objection on the basis it would damage the therapeutic relationship

Legislation:

FAMILY LAW ACT 1975 (Cth) s 69ZN

Category: Reportable

Representation:

Counsel:

Applicant	:	Mr A
First Respondent	:	Mr B
Third Respondent	:	Self-Represented Litigant
Fourth Respondents	:	Self-Represented Litigant
Independent Children's Lawyer	:	Ms C

Solicitors:

Applicant	:	Law Firm A
First Respondent	:	Law Firm B
Third Respondent	:	Self-Represented Litigant
Fourth Respondents	:	Self-Represented Litigant
Independent Children's Lawyer	:	Law Firm C

Case(s) referred to in decision(s):

Nil

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Alba & Alba & Ors has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

INTRODUCTION

1[Mr Alba] the father, and [Mrs Alba] the mother have been involved in parenting proceedings since 2013 in relation to their children, [Child A] aged 14 years and [Child B] aged 12 years. Also involved in the proceedings are the [aunt], [Ms Olsen] and the [grandparents], [Mr and Mrs Olsen]. The children are represented by an Independent Children’s Lawyer.

THE ISSUE FOR DETERMINATION

2The issue for determination concerns two subpoenas which are addressed to [Ms D] of [Service A] who is the treating therapist for Child B and [Ms E] of [Service B] who is the treating therapist for Child A. The subpoenas have issued at the request of the mother. The subpoenas require the therapists to attend court to give evidence and produce documents. Each of the therapists have opposed both giving evidence and producing documents as set out in their correspondence.

3In the case of Ms D that is a letter to the Principal Registrar [of] October 2021 and in the case of Ms E those are letters [of] October 2021 addressed to the Principal Registrar and the ICL.

4In essence, the objection of Ms D with respect to Child B is that the possible repercussions of producing documents and giving evidence include negative long-term or irreparable damage to the therapeutic relationship and trust between her and Child B. Ms D wrote:

[Child B] is a vulnerable young person who requires continued treatment, which necessitates maintaining a therapeutic relationship. The rupture of our therapeutic relationship would likely be detrimental to [the child's] current mental health and [the child's] willingness to seek future psychological assistance. In my opinion, there is nothing that these documents nor my testimony could provide (and hasn’t already been reported) that would make this risk justifiable or ethically responsible.

5With respect to Child A, Ms E objects on the basis that there is a very real potential that if she is asked to give evidence directly to the court, this would damage the therapeutic alliance and relationship between her and Child A irrevocably, and potentially Child A's perception of therapy and therapists more generally, thus adversely impacting the child's capacity and willingness to engage in much needed services now and in the future. Ms E wrote:

I do not believe there is anything new these documents or my testimony could provide that would make the risk to [Child A's] continued positive engagement in psychological services either justifiable, or ethically responsible.

6In support of the subpoena, counsel for the mother emphasised that the information the mother sought to obtain from the therapists is that relating to day to day routine and activities of children, the mother's position being there has been a deficiency as to what has been occurring. Counsel for the mother also sought to ascertain from the therapists, what the children's reaction was to a letter which the mother had provided to them at their school.

7The mother's position was supported by the third and fourth respondents but was opposed by the father and the ICL.

8I turn to s 69ZN of the Family Law Act 1975 (Cth), which contains the principles for conducting child-related proceedings. The first principle is that:

The court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.

9I am of the view that until further order, the therapists should not be required to give evidence and there is to be no inspection of the documents produced by each of them.

10I have come to this view for the following reasons:

•In 2019, [Ms F] reported at a time when there were difficulties in the children's therapy:

In 28 years of practice I cannot recall children more desperately in need of therapy and support than [Child A] and [Child B]. I cannot state strongly enough how important I think it is that these [children] get urgent and frequent access to therapeutic support.

The importance of the children's therapy therefore cannot be underestimated and in circumstances where it is asserted that the therapeutic relationship will be damaged, that is a risk I am not prepared to take.

•The information sought by the mother concerns the children's day to day routine and activities. This evidence can readily be given by other parties including the father and the children's teachers.

•The information available to these therapists has been provided with the children's consent to Dr G. In other words, he will report on what he has been told by the therapists. The ICL indicated that Dr G will be asked to speak again to the therapists to update his information and that will include the reaction of the children to the letter which they received from the mother. It seems to me that the information can be obtained in this way without damage or potential damage to the children's therapeutic relationship with their therapists. In Dr G's updating report, annexed to his affidavit filed [in] August 2021, he referred on several occasions to his discussions with the therapists. Further, Dr G has interviewed the children directly and he will be available for cross-examination.

•While the information sought by the mother regarding the children's day to day routine and activities and their reaction to the letter is important and relevant, it is only one of many aspects to this case, all of which will be taken into account in determining the children's overall best interests and specifically their living arrangements.

THE ORDERS

1Until further order, there be no requirement for Ms D from Service A and Ms E from Service B to give evidence and there is to be no inspection of the documents produced by each of them.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CL

Judicial Support Officer

10 DECEMBER 2021