Bauer & Steggall
[2011] FMCAfam 728
•7 July 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| BAUER & STEGGALL | [2011] FMCAfam 728 |
| FAMILY LAW – Family counselling – family dispute resolution – Confidentiality – public policy – role of Independent Children’s Lawyer. |
| Family Law Act 1975, ss.10B, 10D, 10J, 10E, 60CA, 68LA |
| Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 AMS & AIF [1999] HCA 26 Harkiss & Beamish [2011] FMCAfam 527 Bolton & Bolton (2010) FMCAfam 140 Roux & Herman [2010] FMCAfam 1369 Trapp & Vonne [2009] FMCfam 497 Klatzer [2011] FMCAfam 85 International Convention on the Rights of the Child “If Wishes Were Horses, Beggars Would Ride” Dr Chris Lennings Children’s Law News |
| Applicant: | MS BAUER |
| Respondent: | MS STEGGALL |
| File Number: | PAC 5304 of 2010 |
| Judgment of: | Harman FM |
| Hearing date: | 7 July 2011 |
| Date of Last Submission: | 7 July 2011 |
| Delivered at: | Parramatta |
| Delivered on: | 7 July 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Heazelwood |
| Solicitors for the Applicant: | F W Ewart & Ewart |
| Counsel for the Respondent: | Mr Shaw |
| Solicitors for the Respondent: | Anderson Boemi Lawyers |
| Independent Children’s Lawyer: | Ms Hafey |
| Solicitors for the ICL: | Legal Aid Commission of NSW |
ORDERS
Then by consent and pending further order:
Ms Steggall shall within seven days provide to Ms Bauer a mobile telephone to then be provided to the children [X] and [Y] for their use and retention, and for the purpose of receiving telephone calls from either Ms Steggall or Ms Bauer in accordance with orders previously made by this Court.
The mobile telephone shall be retained by [X] and [Y] for the above purpose.
Each party shall do all things necessary and required to ensure that the mobile phone travels with [Y] and [X] and is switched on, charged and in credit at such times and dates as calls are to be made by either
Ms Steggall or Ms Bauer to the children in accordance with existing orders, and –
Each of Ms Steggall and Ms Bauer shall, whenever a call is received by [X] and/or [Y] on that phone from the other allow [X] and [Y] to answer the telephone for themselves and to speak with the other party with privacy and without distraction or interruption.
I decline to make an order as sought by Ms Steggall in her case for the release on any basis of information by Dr B to Dr R save and except as is already authorised and permitted by order 12 of the orders made by me, 15 November 2010, and I further direct that my reasons be published.
I direct that further material produced on subpoena since the first report of Dr R and any material produced by Victim Services, New South Wales be copied and provided to Dr R prior to his completing his report and if at all possible, prior to his appointments with the parties, 18 July.
I release material produced today on subpoena by New South Wales Police (five bundles thereof) together with material produced by Victim Services, NSW.
IT IS NOTED that publication of this judgment under the pseudonym Bauer & Steggall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 5304 of 2010
| MS BAUER |
Applicant
And
| MS STEGGALL |
Respondent
REASONS FOR JUDGMENT
Application is made before me in these proceedings today which seeks an order in the following terms:
“That the independent children’s lawyer request Dr B to inquire of the child [X] as to whether or not he has any objection to his views about (1) whether, and (2) if so, how much time he wishes to spend with the respondent, [being Ms Steggall], and/or any other member of the respondent’s family”.
The order is sought in the context of these proceedings which have a substantial history before this Court.
The substantive proceedings relate to two children, [X] born [in] 1999 (and accordingly shortly to turn 12) and [Y], born [in] 2005 (and accordingly shortly to turn six years of age).
The children are the subject of proceedings between their mother,
Ms Bauer, and their paternal grandmother Ms Steggall. The children’s father, Ms Steggall’s son, is deceased.
The matter has been before the Court on numerous occasions since the proceedings were instituted, and has come before the Court today with respect to two applications, being firstly an application for contravention by Ms Steggall and secondly an application by Ms Bauer to vary, suspend or discharge existing orders which provide for time and communication between those children, each of them, and their paternal grandmother. The proceedings are otherwise listed for final hearing in some 2 months.
During the course of the proceedings and on 15 November 2010 orders were made by me appointing an independent children’s lawyer who has been of considerable assistance to the Court throughout the proceedings and again today. On that date I had also made an order for the appointment of Dr R as a Part 15 expert for the purpose of preparing a report in these proceedings.
Dr R has prepared a report in these proceedings, and further orders were made by me by consent, 15 June 2011, to commission Dr R to again interview the parties and these children, and prepare an updated and addendum report.
I am told that appointments are now scheduled with Dr R for 18 July 2011, and as a consequence a report should be available by mid August 2011. The parties have since being made aware of that and no doubt with substantial input by the independent children’s lawyer’s agreed to attend family dispute resolution which will now occur in a timeframe to accommodate the envisaged release of that report.
Also on 15 November, 2010 orders were made by me which provided for the children to attend therapeutic psychological counselling, which whilst expressed in those terms it was otherwise made clear was to be family counselling within the definition of section 10B of the Act, and for the purpose of these children receiving support and assistance, and such treatment as may otherwise be recommended, whether by Dr B or by referral to any other person.
The issue that arises today, then, relates to the order that is now sought and as indicated above.
To some extent there is already ability for Dr B, as provided by order 12 of the orders made on 15 November 2010, to provide input at his discretion to Dr R the report writer. Order 12 provides that:
“Dr R is at liberty to contact Dr B as the provider of therapeutic assistance to [X], and Dr B is at liberty to provide such information to Dr R as he considers necessary or appropriate, and which would not, in Dr B’s view, prejudice or undermine any therapeutic relationship he has developed with [X]”
It was intended by that order to make clear the confidential and privileged nature of that counselling and to facilitate, if it were considered necessary and appropriate, Dr B releasing information to
Dr R.
I was conscious at that time and remain so today that there is potentially a Makita (Australia) Pty Ltd v Sprowles issue that might arise in the event that Dr B were to provide information to Dr R which was then either specifically disclosed or not in Dr R’s report, and which was relied upon by Dr R in formulating any position. That is an issue, however, that need not be dealt with or determined today, but can be dealt with at trial in the event that this matter is not resolved with family dispute resolution.
The issues that arise from the order as sought are not simple. Those issues relate to the interpretation and definition of matters under Part II division 2 of the Family Law Act, as well as matters of public policy, matters specifically relating to the construction of the order as sought, and including issues with respect to the extent to which children can and should be involved in proceedings, and the extent to which they should be protected from those proceedings. I will deal with each of those three issues separately.
Protection of the Child & Part II
In relation to the protection of this child from exposure to ongoing interview, questioning or otherwise, I am concerned that the history of these proceedings is such that, as I have observed to the parties on the last occasion, 15 June, 2011, I already have significant concerns based not only upon what is led by the parties but in Dr R’s first report as to the extent to which these children, and each of them, but particularly [X] who is suggested to require some degree of psychological and/or psychiatric intervention, have been impacted by the dispute between the adults in their life who profess love for them.
I do not use that terminology to suggest that, for one moment, I doubt the love that each of these adults have for these children. However, the impact of the vehemence with which they demonstrate their love, through a desire to prosecute the applications that they each have before the Court, is of concern in that [X] has clearly been impacted by events that have occurred as disclosed in affidavit material filed in these proceedings, as well as matters that occurred prior to the commencement of these proceedings, including the unfortunate demise of his father.
The order that is sought, in my mind, has difficulty. That is not a criticism of the drafter but the very issue that it seeks to address.
The family counselling that was ordered by me, as referred to in the above orders, was intended very much to be within the definition of section 10B(b), being “…a process in which a family counsellor [in this case, Dr B] helps one or more persons including children who are affected or likely to be affected by separation or divorce to deal with either or both of the following:
(i) personal and interpersonal issues;
(ii) issues relating to the care of children”.
Clearly it was intended to address personal and interpersonal issues for [X] as regards his own emotions, feelings and coping mechanisms, as well as his relationships with each of the adults involved in his life.
That counselling was, by the very orders that were pronounced, designed to be enshrined with confidentiality not only as provided by Part II division 2 but so to be a therapeutic process.
It is trite to say that literature dealing with therapeutic processes makes clear the importance of confidentiality. More importantly, it makes clear the importance of confidentiality once held out and established, remaining so and not being withdrawn. Any threat to same would be inconsistent with the nature, purpose and intended benefit of that therapy.
For therapeutic interventions to work effectively it is important that the patient, the client or whatever nomenclature is used to describe [X] in this case is not misled into placing trust and assurance in a therapeutic provider whom, it subsequently transpires, is nothing of the sort. That is particularly so in relation to [X] whom Dr R’s first report makes clear is significantly emotionally and psychologically impacted by a number of events at this point in his life, and being a child of not yet
12 years of age.
It is submitted that [X], at that age, “clearly” has maturity which would allow him to make an informed decision as to whether or not he wishes his information, as disclosed confidentially to Dr B in a therapeutic process, to now be released. I am not satisfied that I can infer [X]’s maturity or make that assumption.
I have referred Counsel, during their submissions, to literature such as Dr Chris Lennings’ paper “If Wishes Were Horses, Beggars Would Ride”, which, whilst dealing specifically with matters relating to direct instruction by children under the Children and Young Persons (Care and Protection) Act and the failed and misplaced concept that 12-year-old children can and should be able to express their own clear views, the paper highlights that, indeed, children who have had impacted or deficient parenting, traumatic experiences or otherwise poorly parented are all the less likely to, in fact have sufficient maturity or cognitive ability to understand the importance, seriousness or consequences of their views and wishes.
In this case I am satisfied, on the material that I have read and the presentation of the matter thus far in its history, that these parties are very much distrustful of each other, and that [X] is fully aware and cognisant of that, and that he is very much, at least in some small part, caught in the middle with divided loyalties and an expectation of how he will react in certain circumstances.
I understand and appreciate that the parties in the conduct of this litigation, they having a right enshrined from Magna Carta onwards of procedural fairness and due process, wish to elicit information that would be of assistance, it remains that whether with respect to their case or to this Court in hearing and determining the matter, their remains the obligation under section 60CA to treat [X]’s best interests as the paramount consideration at all times.
In my mind there must be a limit and a balance between the right of parents to present their case and the desire of the Court to have the best available information versus the overall important of this child’s welfare.
Section 60CA requires that children’s welfare be prioritised as the paramount consideration but not the only consideration, (as has been observed by the High Court in AMS v AIF and others). The right of due process, procedural fairness and indeed the legitimate interests of parties are also relevant considerations, but subservient to the paramount consideration.
The objects and principles of the Act which would apply, mutatis mutandi, to an interpretation of Part II division 2 as they are portions of the Act that deal solely or substantially with parenting proceedings under Part VII, provide that children’s best interests are generally to be protected by ensuring that they are protected from physical or psychological harm.
It also provides, in the underlying principles, that children, whilst they have a right to know and be cared for by their parents and communicate and spend time with others, must also, again, be the subject of their parents sharing duties and responsibilities.
Whilst the International Convention on the Rights of the Child requires that children have an appropriate voice in the proceedings the focus of the legislation is to ensure that children are protected from the full glare of and exposure to the proceedings. It is for that reason, for instance, that children’s views are ascertained through family reports and the like, and through the appointment of independent children’s lawyers, rather than by children attending and participating, giving sworn testimony and being cross-examined.
Part VII Division 10 provides and identifies the role of the independent children’s lawyer. Part of that role, which I am entirely satisfied
Ms Hafey has discharged and will continue to discharge in these proceedings, and as set out in section 68LA, is to form an independent view based on evidence available to the independent children’s lawyer. By its very wording the view need not be formed based on or solely upon evidence that is available to the Court. The independent children’s lawyer is also to act in the proceedings in what the independent children’s lawyer believes to be the child’s best interests.
There is an obligation upon the independent children’s lawyer, in appropriate circumstances, to present evidence regarding the child’s views, but for that evidence to be presented it must be admissible.
The independent children’s lawyer may disclose communications that she has received either from a child or others, but is not obliged to do so and is governed by the same test as this Court - to act at all times in the child’s best interests in determining whether that disclosure is to be made.
It is clear from the terms of the orders that I have made regarding Dr B and indeed from the terms of Division 2 Part II that the independent children’s lawyer may receive information from Dr B as a family counsellor providing assistance to [X]. That much is clear from section 10D(4)(f).
It is also clear that the independent children’s lawyer is entitled to communicate with Dr R and that Dr R and Dr B are entitled to communicate with each other.
As I have indicated, should it be suggested that any Makita (Australia) Pty Ltd v Sprowles issue might arise regarding information that may be provided by Dr B within his discretion – and it is not yet asserted that any information has, in fact, been made available by Dr B to Dr R– then that issue will be addressed at final hearing. But I am satisfied that the therapeutic relationship that has been established between [X] and Dr B, and indeed enshrined by orders made by this Court, should not now be the subject of either:
a)reversal by this Court in determining, nine months after those boundaries were established, to remove them, or
b)
to determine that therapeutic confidentiality should be removed as suggested by the proposed order which would allow or direct
Dr B, as a therapeutic clinician, inquiring of [X] as to whether he consents to the release of information.
That much, I am satisfied, would be at odds with the Court’s obligation and indeed a derogation of parental responsibility which at this time lies entirely in the hands of Ms Bauer.
Section 10D(3)(b) provides that a family counsellor may disclose a communication if consent is given by each person who has parental responsibility or by Court order. In this case the only person with parental responsibility for [X] is Ms Bauer. She has in Court today declined to provide that consent.
It is antipathetic to the basis of our common law, let alone the Family Law Act, to derogate from Ms Bauer’s parental responsibility and to cast that decision-making power to [X], a child of 11, and who is, for all other intents and purposes, under a legal incapacity to provide consent.
He cannot give his own consent to medical processes, enter contracts or obtain credit and I am satisfied he should not, in these circumstances, be required to have that pressure placed upon him to now determine – with no evidence to suggest to me that he has the cognitive ability or capacity of understanding the decision he is being asked to make – to remove and cast aside the therapeutic confidentiality that attaches to the very counselling provided to try and assist him in dealing with his own personal and interpersonal issues.
The Family Law Act
I am conscious that there are a number of decisions, including quite recent decisions by this court, dealing with the confidentiality and admissibility of family counselling.
Altobelli FM in Harkiss & Beamish has recently commented – and as recently as 26 May 2011 – upon the ability of family counsellors to release information. I do not cavil with most of what Altobelli FM has set forth in that decision, parts of which are obiter and parts of which are germane to the decision he was called upon to make the circumstances of that case dealing with a subpoena issued to Unifam for the production of notes and in circumstances where both parties consented to the release of information.
FM Altobelli has interpreted that the word “may” in section 10D(3), being the very section I quoted regarding the release of information with consent, is intended to convey the opposite of “must not” as is used in section 10D. I respectfully concur with Altobelli FM in that regard. The intention of subsection 10D(3) is not to reserve a discretion to the family counsellor. The family counsellor is authorised and permitted to release information by that subsection (when there is appropriate consent or a court order) whereas the other portions of section 10D provide mandatory non-disclosure and prohibit the release of information.
Where Altobelli FM and I may be at odds to some extent, although they are only obiter comments by his Honour, relates to the interpretation of section 10E.
Section 10E excludes as inadmissible any communication which occurs in family counselling, being either “…an admission made or anything said by or in the company of a family counsellor or a person to whom the family counsellor refers a person…”. Accordingly, if
Dr B had determined, as was envisaged in the order, that [X] required psychiatric assistance and intervention and therapy of that nature and a referral was made as the order provided, then, indeed, that therapy also would be confidential.
Section 10E makes clear that anything that occurs during family counselling or with a person to whom the family counsellor has referred their patient or client is “…not admissible in any court”. Accordingly, even if consent is given or a court order made (that the information be released) and information is, in fact, released then the information released remains inadmissible. I would have some concern, if dealing with the same circumstances as Altobelli FM, as to the purpose of releasing the information to the parties as it can never come before the court.
That would be, in my mind, the case with respect to anything that was disclosed by Dr B to Dr R, or indeed disclosed through the subpoena of notes or otherwise from Dr B, on the basis that the evidence produced would be inadmissible unless it fell within the categories in s.10E(2) regarding admissions or disclosures of abuse.
The issue of a subpoena to produce that evidence, absent some clear knowledge that an admission or disclosure had been made would, in my mind, be an abuse of process and the subpoena would and should be struck out. That much I have some comfort arises also from section 10D(4). A family counsellor, whilst they may disclose the information with the consent of parties, and subsection 10D(3) does not make clear who that disclosure may be made to , it clearly could not be made to the court because that information would be inadmissible as evidence and the court hears and determines cases based on admissible and probative evidence, notwithstanding any other waiver or non-application of specific rules of evidence under division 12A of Part VII.
Section 10D(4) provides that a family counsellor may disclose communications to the relevant authority if they believe that it is “…necessary for the purpose of protecting a child from a risk of harm, preventing or lessening a serious and imminent threat to the life or health or a person, reporting the commission or preventing the likely commission of an offence involving violence or a threat of violence to a person, preventing or lessening a serious and imminent threat to the property of a person, reporting the commission or preventing the likely commission of an offence involving intentional damage to property, or [germanely to this case] if a lawyer independently represents a child’s interests and if to do so would assist that lawyer in doing so properly”.
It has, I have no doubt, been of considerable assistance to Ms Hafey in formulating her position, as she is required to do under section 68LA, to have input from Dr B. However, there is – as I quoted from the previous sections of Part VII – no obligation upon the independent children’s lawyer to pass that information to any other person or disclose it in any fashion. Indeed, in my mind, having regard to section 10E, even if the independent children’s lawyer were to cross-examine a party relying upon information provided by Dr B, and/or to inadvertently disclose anything that may have been said by Dr B during communication between the independent children’s lawyer and others, that information would remain inadmissible, unless it were an admission or a disclosure of abuse. It could not be otherwise on any proper interpretation of section 10E, subsections (1) and (2).
I am satisfied, on that basis, that the order that is proposed could not be made, and again, with no disrespect at all intended to its drafting or its drafter, as firstly it would derogate from the requirements of section 10D(3)(b)(i) by overriding the parental authority and parental responsibility that, at this point in time, resides solely with Ms Bauer, and secondly, it would, in fact, infringe sections 10D and 10E.
It is also germane in that regard to note that section 61B provides the meaning of parental responsibility meaning “…all duties, powers, responsibilities and authority, which by law parents have in relation to children”. Section 10D(3) provides one such authority being the right to consent to the release of information. Even if consent were given for release of information it would still not be admissible in this court and in these proceedings.
Further, in my mind, it would create further Makita (Australia) Pty Ltd v Sprowles issues if information were then released, irrespective of the fact that it is sought to place the burden of determining its release upon an 11 year old child, as if the information is then released and relied upon by Dr R, there would be substantial issues as to reliance upon inadmissible evidence that could not be or come before the court, could not be tested and which would further complicate issues of procedural fairness and due process as regards the conduct of one or both parties’ case.
Public Policy
The Court has for many years – both under predecessors of Part II, Division 2, prior to 2006 and since – commented upon the public policy basis of restricting access by parties to information that is produced from processes that are entered into on the basis of an expectation that they will be and remain confidential and privileged.
Scarlett FM in Bolton & Bolton (2010) FMCAfam 140 did not allow or permit the disclosure of notes made by a family counsellor to a forensic report writer – the very application made, in part, in this case – on the basis that it would be “undesirable for such notes to be used in this way for the purpose of these proceedings.” He went on to indicate:
“My own view is that the parties clearly consulted the family counsellor together for the purpose of counselling about their relationship, whether or not the parties joint sessions with the family counsellor bring the notes within the operation of section 10E as a matter of conjecture, but I believe it is undesirable
I have no such doubt that section 10E would exclude those notes even if they were released to a family report writer or other expert,” [as is the case of Dr R in this case] because the ultimate admission of any material from the family counsellor would be inadmissible and precluded by the Act”
Also in Roux & Herman, Riethmuller FM dealt with analogous provisions relating to family dispute resolution. Whilst Riethmuller FM has in other instances had cause to comment upon the confidentiality provisions of family dispute resolution contained within the Act, particularly in Trapp & Vonne & Ors, he has, in this instance, made very clear the public policy issue that in existed. Riethmuller FM indicated that:
“It seems to me that it cannot properly be said that a parenting plan agreement reached at the end of such a process could be said to fall within the confines of section 10J”.
In that case his Honour was dealing with a draft parenting plan which had not been executed by the parties, (and as a consequence and by reference to the definition of parenting plan contained within the Act, is, in fact, a non sequitir as it is not a parenting plan unless and until it is signed by both parties). He went on to indicate:
“The section refers to things said during that process, not the contents of an agreement reached”
Riethmuller FM went on to preclude admission of the draft parenting plan as evidence before the court, and in my respectful view, quite properly so.
I have also dealt with similar issues earlier this year in a matter reported as Klatzer dealing with the admission into evidence of matters that would be dealt with either under section 10J or under, in this case, section 10E. Information, no matter how it is disclosed and with whose consent or even if released by court order, is put into the public domain and into the hands of the parties, that does not, in any fashion, make that information admissible as evidence. Section 10E excludes it.
For all of those reasons, both as to protection of this child by not being placed in a position where his therapeutic treatment is put into the public domain, nor his belief and expectation that what he discussed and disclosed to Dr B would remain confidential as well as on the basis of the above sections of the Act to which I have referred and public policy grounds, I make the further following order:
ORDERS DELIVERED
I certify that the preceding sixty-one (61) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 18 July, 2011
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