Bergeron & Bergeron
[2023] FedCFamC1F 1031
•7 December 2023
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Bergeron & Bergeron [2023] FedCFamC1F 1031
File number: SYC 7747 of 2018 Judgment of: MCGUIRE J Date of judgment: 7 December 2023 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – objection to subpoena – where father and Independent Children’s Lawyer have issued subpoenas to the children’s treating therapists and Child Protection Authorities – where the mother objects – where mother’s notice of objection to subpoenas be dismissed Legislation: Family Law Act 1975 (Cth)
Federal Circuit and Family Court of Australia (Family Law Rules) 2021 rr, 5.01, 13.12(2)
Cases cited: Clemett v Clemett (1981) FLC 91–013, [1980] FamCA 90
Crawford & Sisinis and Anor [2014] FamCA 912
Feinster & Feinster & Anor [2006] FamCA 232
Leroux & Leroux and Ors [2016] FamCA 255
Millar v Millar (1983) FLC 91–326
Sadasivam & Seshan (2019) FLC 93-899, [2019] FamCAFC 76
Division: Division 1 First Instance Number of paragraphs: 39 Date of hearing: 30 November 2023 Place: Hobart, delivered Melbourne Counsel for the Applicant: Mr Schonell Solicitor for the Applicant: The Norton Law Group Counsel for the Respondent: Ms Fiskin Solicitor for the Respondent: Barkus Doolan Winning Counsel for the Independent Children’s Lawyer: Mr Wilkins Solicitor for the Independent Children’s Lawyer: Phillip A Wilkins & Associates ORDERS
SYC 7747 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR BERGERON
Applicant
AND: MS BERGERON
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
MCGUIRE J
DATE OF ORDER:
7 DECEMBR 2023
THE COURT ORDERS THAT:
1.The objections to subpoena lodged by the mother, Ms Bergeron, on the 9 March 2023 and in respect of the following: Child Protection Service, CH Hospital, the JJ Centre, Region GG CYMHS, HH Psychology and Region CA Child Protection Service be dismissed, but where any material brought to court under any of the subpoena in respect of V be redacted or otherwise be not released and in this respect the Independent Children’s Lawyer is directed to view and inspect the documents prior to inspection by other parties or their legal representatives.
IT IS NOTED:
A.The mother’s objection to the subpoena issued and directed to Dr CG has been abandoned and as such documents at Court under that subpoena may be released.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym of Bergeron & Bergeron has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
MCGUIRE J:
APPLICATIONS
I have before me objections by Ms Bergeron (“the mother”) to subpoena issued by Mr Bergeron (“the father”) and/or the Independent Children’s Lawyer (“ICL”) in relation to substantive parenting proceedings pending trial in respect of the parties’ four dependent children being: W (aged 13 years), X (aged 10 years), Y (aged 10 years) and Z (aged 6 years). The children have an adult sibling, V (aged 20 years).
The mother’s objections filed 9 March 2023 relate to six subpoenas issued and directed to:
(a)Child Protection Service, CH Hospital;
(b)The JJ Centre;
(c)Region GG CYMHS;
(d)Region CA Child Protection Service;
(e)HH Psychology; and
(f)Dr CG, CH Hospital.
The mother has abandoned her objection in respect of the subpoena to Dr CG.
The father argues that the objections should be dismissed and the documents provided the under the subpoena be released. He is supported in this position by the ICL.
BACKGROUND
Proceedings were commenced by the father in 2018 in the Federal Circuit Court in respect of both property and parenting issues. There commenced then a lengthy and convoluted procedural and litigious history.
On 23 January 2020 Judge Morley in the Federal Circuit Court (as it then was) only made orders inter alia as follows:
3.That the therapy to be provided to the children [W] and [X] pursuant to order 4 in the Minute of Interim Orders is confidential and is not reportable.
4.Neither party may issue a subpoena to any therapist providing therapy to [W] and [X] nor to anybody for whom that therapist may work.
The application proceeded to trial before his Honour over eight days between 24 August 2020 and 7 March 2021.
Final orders were made by his Honour on 26 May 2022 being some 14 months after the completion of the evidence where property matters were concluded and his Honour made parenting orders inter alia providing for a change of primary residence for the children from the mother to the father with an order for sole parental responsibility for the children resting in the father and a moratorium on time between the children and the mother (excepting the youngest child) for a period of three months.
Somewhat unusually, his Honour’s orders of 26 May 2022 also provided inter alia:
…
19.These orders are stayed until 11:30AM today 26 May 2022.
20.Leave is granted to the Mother to make a verbal application for a time-limited stay of the final orders made today.
21.Orders 5 to 18 of these orders are stayed until 4.00PM on 24 June 2022 on terms and conditions.
22.It is a condition of the stay granted today that the children [Y] born […] 2014 and [Z] born […] 2017 spend time with their Father each Saturday, unsupervised, from 9.00AM until 5.00PM.
23.It is a condition of the stay granted today that the children [W] born […] 2010 and [X] born […] 2013 spend time with their Father in company with their younger sisters [Y] and [Z] on the occasions provided in these orders on occasions where they express any wish to spend that time with their Father.
…
28.The proceedings are listed for interlocutory hearing as to a stay of the final orders made today at 9:30AM on 20 June 2022.
29.It is a condition of the stay granted today that the Mother file and serve a Notice of Appeal by no later than 4.00PM on 17 June 2022.
30.It is a condition of the stay granted today that the Mother file and serve a formal application for a stay by no later than 4.00PM on 9 June 2022.
(Original emphasis)
Following some amendments to the above procedural orders on 1 June 2022, a formal stay order was granted on 20 June 2022 pending the hearing of the Appeal.
Relevantly, to the above the chronology and his Honour’s orders, it is uncontroversial that for a considerable time prior to his Honour handing down Judgment on 26 May 2022 the children’s time with the father had been limited to supervised time.
It is also uncontroversial that it came to the notice of the parties that the transcript of one day of the hearing before Judge Morley was “missing” and hence perhaps giving some understanding to the anticipated Appeal.
On 7 September 2022 Aldridge J sitting on appeal upheld the mother’s appeal, and unsurprisingly given the missing transcript. The matter in so far as it related to parenting orders was otherwise remitted for rehearing before another judge.
The matter has since and recently been transferred to Division 1 of this Court and procedural orders towards trial were made only in recent weeks by Campton J.
THE MOTHER’S OBJECTIONS
The Notices of Objection by the mother to each of the relevant subpoena are identical being on the following single basis:
privilege – in respect of medical records relating to [W] and [X], noting Orders dated 23 January 2020 prevent the parties from issuing a subpoena to any therapist providing therapy to [W] or [X].
In her helpful written and oral submissions, counsel for the mother developed the objection on two separate bases.
Firstly, counsel for the mother suggests a misunderstanding on the part of the father of the interim orders made by Judge Morley on 23 January 2020 including orders three and four therein set out above.
Rule 5.01 of the Federal Circuit and Family Court of Australia (Family Law Rules) 2021 (“the Rules”) provides:
On the making of final orders in a proceeding, any interlocutory order made in the proceeding pending further order is automatically discharged and ceases to have continuing effect.
Counsel correctly submits that Rule 5.01 appears to be a direct codification of the principles articulated in previous authority such as Sadasivam & Seshan[1] where Austin J sitting as a Full Court stated at [26]:
… Interlocutory orders may be discharged at any time before the trial or settlement of an action, but are ipso facto discharged by determination of the action, since interim orders are only intended to regulate the parties’ conduct in one form or another until the action between them is finally determined according to law. …
[1] (2019) FLC 93-899, [2019] FamCAFC 76.
Counsel for the mother directs this Court’s attention, however, to the effect of the Stay Order initially made contemporaneously with the making of the final orders and then confirmed by later order after the lodging of the Appeal.
Counsel refers the Court to Rule 13.12(2) of the Rules which provides under the heading “Stay”:
If an appeal has been started, or a party has applied for leave to appeal against an order, any party may apply for an order staying the operation or enforcement of all, or part, of the order to which the appeal or application relates.
Counsel for the mother argues that the effect of the Stay Order here was the staying of the operation of all of the orders expressed to be stayed being the parenting orders at [5] – [18] of the final orders of Morley J made 26 May 2022. Suffice to say that I agree with the submission of counsel that a Stay Order made simpliciter such as that made by his Honour is a stay both of execution and operation of the orders[2] and therefore serves to restore any interim order pending the appeal effectively therefore restoring the status quo.[3]
[2] Clemett v Clemett (per Nygh J) (1981) FLC 91–013, [1980] FamCA 90.
[3] Millar v Millar (1983) (per Nygh J) FLC 91–326.
Nevertheless, and properly conceded by counsel, it is open for me in my discretion to discharge the interim order where properly, however, I would need a change of circumstance of sufficient materiality to do so.
In this matter I take into account the following:
(1)that it is now almost four years since the making of his Honour’s injunctive order on 23 January 2020;
(2)pursuant to his Honour’s Stay Orders, were conditions that permitted the children to spend unsupervised time with the father where previously such time had been limited to supervised periods;
(3)it is not contentious that at least two of the relevant children now spend unsupervised time with the father on five nights per fortnight;
(4)the process towards trial involves the Court, and the parties, being informed of current circumstances for the children including references to the matters to be considered at s 60CC(2)(a) and (b) of the Family Law Act 1975 (Cth) and where for these purposes the Court is assisted by updated expert or family reports; and
(5)I am told, and I accept, that the initiative for the injunctive order (4) of the interim orders of 23 January 2020 was the father himself who now, of course, is the parent seeking the material subject to the subpoena.
I am easily persuaded, therefore, that there has been a substantial and material change in circumstances for the children in the years since the making of the injunctive order and prima facie, therefore, the injunctive order may be discharged.
The mother’s second argument in support of the objection is as to the confidentiality of the therapist/child relationship. Despite the wording in the subpoena, I accept that the recipients of each subpoena are therapists/counsellors for the children.
The mother says that the production of the documents sought under the subpoena would breach the confidentiality for W and X named in the interim order, but where all of the children have been provided with therapy and counselling, and in respect of their therapeutic relationships with various professionals.
Counsel for the mother argues that the proceedings have been on foot since 2018 and that there is evidence before the Court that the children themselves have struggled with the process and with knowledge that their parents’ litigation in respect of them continues.
Again, counsel for the mother proffers that it was the father himself who sought the order of 23 January 2020 being that the therapy for W and X be non-reportable, where no statutory prohibition applies, and hence that each of the parties be restrained from issuing subpoena to those therapists. The implication of this argument is that the father himself has been alert to the vulnerabilities of the children in respect of this litigation. This is confirmed in the Single Expert Report of 15 August 2023 where the author insightfully notes:[4]
Four years have passed since the author first met with the parents and children, and regrettably with the passage of time, the children have been adversely affected by the nature of the parental separation and ongoing litigation. As such, the passage of time is an important variable in this matter in coming to a decision about the parenting arrangements for the subject children.
[4] Single Expert Report of Ms BH at [157].
The mother’s argument here and her objection references both public interest immunity and confidentiality aspects of the children’s relationships with their therapists.
In Feinster & Feinster & Anor [2006] FamCA 232 Watts J was of the view that an ordinary psychiatrist/patient relationship did not attract public interest immunity.
The Court always maintains a discretion to exclude or limit the use of evidence if its probative value is outweighed by likely prejudice and here the more general test of relevance is to be considered noting, of course, that such interlocutory issues do not usually come before the Court having the benefit of the evidence to be given or adduced and tested as at trial.
Notably, in this matter, there is no privilege or confidentiality claimed by the recipients of the subpoena being the therapists. Rather, it is the mother that argues confidentiality where, of course, the fact that the material is of a confidential nature does not necessarily lead to conclusions that the material is not relevant or is inadmissible.
The relevant discretion for the Court was considered by Benjamin J in Leroux & Leroux and Ors[5] where his Honour struck out parts of the subpoenaed material reasoning:
I am concerned, having regard to the level of litigation, that these children – and there is clear evidence that they are struggling with this process, and I note the comments made in earlier judgments by me and earlier reasons by me – that they can have access to a therapist and that the Court proceedings ought not to significantly impact on the needs of these children. I am satisfied that the production of those documents would, in my view, and on the evidence before me at the present time, significantly impact on the therapeutic treatment of these children.
[5] [2016] FamCA 225 at [9].
It is clear that His Honour considered the interests of the children as an important factor, albeit perhaps not as the paramount consideration.[6]
[6] Crawford & Sisinis and Anor [2014] FamCA 912.
In this matter there have clearly been changes in circumstances of the children and their parent/child relationships from the date of the order of 23 January 2020. The father was the initiator of the injunctive order and then he now retreats from that position. As at the date of the injunctive order, the children had enjoyed only limited supervised time with the father for a lengthy period whereas now two of the children, at least, spend five nights per fortnight with the father obviously unsupervised. It is now almost four years from the date of the injunctive order and I again note the comments of the Court Expert at [157] of the report in respect of the passage of time being an important variable. It is the ICL who has caused at least some of the subpoena to issue and with a view to informing the family reporter. The objection of confidentiality/public interest immunity does not emanate from the therapist but from the mother. The children are prima facie quarantined from active involvement in the proceeding save and except perhaps for the interviews with the family reporter. These are each relevant considerations.
Consequently, and given the above considerations, I am of the view that the injunctive order of the 23 January 2020 should be discharged given the material changes in circumstances and I am not persuaded that matters of public interest immunity and/or confidentiality are persuasive in me exercising my discretion to limit, wholly or in part, the release of material under the subpoena. The only caveat to this finding is that any material brought to court under subpoena issued which relates to the year 20 year old adult, V, should not be released in circumstances where he is not first given an opportunity to object and given the prima facie sensitivity of such material. Having said this, I am not made aware as to whether or not the material in the subpoena references V or only the four remaining minor children.
The order I make is that the objections to subpoena lodged by the mother on 9 March 2023 and in respect of the following: Child Protection Service, CH Hospital, the JJ Centre, Region GG CYMHS, HH Psychology and Region CA Child Protection Service be dismissed, but that any material brought to Court under subpoena in respect of V be redacted or otherwise not released.
It is noted that the mother’s objection to the subpoena issued and directed to Dr CG has been abandoned and as such documents at Court under that subpoena may be released.
I certify that the preceding thirty-nine (39) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice McGuire. Associate:
Dated: 7 December 2023
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