B v D
[2003] FamCA 386
•9 MAY 2003
[2003] FamCA 386
FAMILY LAW ACT 1975
IN THE FAMILY COURT OF AUSTRALIA
AT ADELAIDE NO AD4576 of 2000
IN THE MATTER OF: Mr B
(Father)
AND
Ms D
(Mother)
AND
X Service and Y HOSPITAL
(Other Parties)
CORAM: THE HONOURABLE JUSTICE DAWE
DATE(S) OF HEARING: 9 MAY 2003
DATE OF JUDGMENT: 9 MAY 2003
EX-TEMPORE JUDGMENT
APPEARANCES: Ms Jeffries [instructed by HEUZENROEDER AND HEUZENROEDER] appeared on behalf of the FATHER
Mr Bleby [instructed by CROWN SOLICITORS OFFICER] appeared on behalf of the OTHER PARTIES
No appearance by or on behalf of the MOTHER
The trial of the issues concerning the child of the parties is to start before me on Monday, 12 May. The mother has filed an affidavit of her therapist from the X Service. The father through his solicitors has issued subpoenas to two of the workers at the X Service seeking that they produce to the registry their notes and other documents relating to the mother. On the adjourned date of the return of the subpoena, Dr. Bleby of the state Crown Solicitor's Office appeared and asked that the subpoenas be set aside. Ms Jeffries appeared for the father.
It appears from the allegations in the material before the court that the mother alleges she is a victim of acts which would constitute sexual offences if committed by the father.
Counsel for the respondents to the subpoenas asserted, and his assertions were not contradicted, that the respondents to the subpoenas were employed by the X Service and provided counselling and therapy to the mother which resulted in her communications with them being communications “in a therapeutic context” within the meaning of the Evidence Act of South Australia.
Amendments to the Evidence Act (1929) of South Australia which were made in 1999 protect certain communications. It appears that the relevant communications occurred after the amendments, therefore the issue of any retrospectivity of the amendments does not arise.
Section 67D sets out certain definitions, including:
“Protected communication” means a communication that is protected by public interest immunity under section 67E.
Section 67D states “therapeutic context” as:
A communication relating to a victim or alleged victim of a sexual offence is made in a therapeutic context if
(a) the communication is made –
(i) to enable the counsellor or therapist to assess the nature and severity of the trauma suffered by the victim or alleged victim, or consequent psychiatric, psychological or emotional harm; or
(ii)for the purposes, or in the course, of psychiatric or psychological therapy provided to the victim or alleged victim; and
(b) the communication is made in circumstances that give rise to a duty of confidentiality or a reasonable expectation of confidentiality.
That the circumstances fall within the definition of “therapeutic context” was not in contest before me.
Section 67E states:
(1) A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
Subsection (2) sets out certain exceptions. Subsection (3) of section 67E says:
A public interest immunity arising out of this section cannot be waived by –
(a) a counsellor or therapist; or
(b) a party to the protected communication; or
(c) the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.
Section 67F provides that:
Evidence of a protected communication is entirely inadmissible in committal proceedings and cannot be admitted in other legal proceedings unless certain criteria are met, including that the court gives leave to a party to the proceedings to adduce the evidence.
Subsection (c) of Section 67F(1) provides that:
Evidence of a protected communication is not liable to discovery or any other form of pre‑trial disclosure.
Section 67F continues to set out certain matters which are to be considered in relation to an application for leave to adduce evidence of a protected communication.
The South Australian Evidence Act provides certain definitions in the provisions of section 4; and in particular "a legal proceeding" and "proceeding" are defined as:
“A legal proceeding or proceeding includes any action, trial, inquiry, cause, or matter, whether civil or criminal, in which evidence is or may be given and includes an arbitration.”
Section 5 of the Act says:
“The provisions of this Act, unless an intention to the contrary is expressed, or appears or is implied by the context-
(a)apply to every proceeding before any court whatever; and
(b)are in addition to, and not in derogation of, any rules of evidence or power, or right, or duty in relation to procedure or evidence, whether existing at common law, or provided by any law, at any time, in force in this State.
The Family Court of Australia is a federal court. The Evidence Act containing in these provisions is a South Australian Act. The Judiciary Act 1903 (Commonwealth) by Section 79 provides that:
The laws of South Australia relating to procedure and evidence are binding on this court, “except as otherwise provided by the constitution or the laws of the Commonwealth.”
No arguments concerning any inconsistency between state and federal laws were put before me. No questions concerning the interpretation of the Constitution were argued. On the face of the legislation indeed, no constitutional issue arises and no question of inconsistency arises. The Judiciary Act specifically requires this Court to apply the State laws of evidence “except as otherwise provided” (my emphasis).
The Commonwealth Evidence Act does not contain any provisions relating to subpoenas. I refer to the Northern Territory of Australia v GPAO and Ors (1999) 196 CLR 553 (otherwise known as GPAO). In that case the High Court also concluded that the Family Law Act and Rules do not "otherwise provide". The power of the Family Court to insist upon compliance with a subpoena is limited by the provisions of the Judiciary Act.
The State Evidence Act deals with specific, special circumstances of communications in a therapeutic context. The general power given to the Family Court to subpoena documents is not a power which can override the specific laws of procedure in relation to protected communication set out in the laws of South Australia which are required to be applied by the Family Court sitting in South Australia.
Counsel for the father submitted that I should apply the principle that the best interest of the child is the paramount consideration. She relied on the decision of Reynolds v Kilpatrick (1993) FLC 92‑351. That decision was before the Reform Act 1995 changes to the Family Law Act and the decision of GPAO. Section 65E of the Family Law Act applies when a court is deciding to make a particular parenting order but not when deciding whether it is bound by the State laws of evidence as required by the Judiciary Act. The welfare of the child is not the paramount consideration in the determination of procedural matters such as this.
After the passing of the Family Law Reform Act 1995, the High Court of Australia considered the interaction of the provisions of the Family Law Act and other legislation. In GPAO, McHugh and Callinan JJ said, at pages 628 to 629:
“The general power conferred by order 28 rule 1 of the Family Law Rules should not be construed as authorising the production of documents protected by specific and narrowly directed provision such as section 97(3) ‑
(they were there referring to the Northern Territory legislation)
which plainly intends to create an exception to long‑established general principles about the procedures governing legal proceedings.”
The provisions of section 67F(c) of the state Evidence Act prevent the evidence of the protected communication between the mother and her therapists at the X Service being liable to any form of pre‑trial disclosure. The subpoenas issued seek pre‑trial disclosure. The prohibition at pre‑trial level appears absolute (see Questions of Law Reserved (No 1 of 2000) (2000) SASC 205, a decision of the South Australian Supreme Court of Criminal Appeal). The mother cannot waive the immunity granted; so whether or not she consents, the immunity remains.
This decision deals with the question of pre‑trial procedure of the subpoenas. It does not deal with any question that may arise on or after any application for leave to adduce evidence.
I therefore set aside the two subpoenas, documents 69 and 70.
I certify that this with the preceding 23 paragraphs is a true copy of the reasons for judgment herein of the Honourable Justice Dawe
The 9th day of May 2003
...............................
Associate
Catchwords
Evidence -privileged - sexual abuse
Legislation:Evidence Act (1929) (SA) s4, s5, s67D, s67E, s67F
Family Law Reform Act 1995
Judiciary Act 1903 (Cth) s79
Evidence Act 1995 (Cth)
Cases:Questions of Law Reserved (No 1 of 2000) (2000) SASC 205
Reynolds v Kilpatrick (1993) FLC 92-351
Northern Territory of Australia v GPAO and Ors (1999) 196 CLR 553
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