Cadriel & Gabbey
[2021] FedCFamC1F 316
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Cadriel & Gabbey [2021] FedCFamC1F 316
File number(s): ADC 4072 of 2019 Judgment of: BERMAN J Date of judgment: 17 December 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Registrar – Review of Decision – Subpoenas – Where the mother sought notes in relation to her counselling at L Family Services via subpoena – Where L Family Services objects to the inspection and copying of the documents – Consideration of whether the counselling was family counselling – Discussion of the relevance of documents produced under subpoena – Where L Family Services allowed the mother to inspect and transcribe a copy of the documents – Where L Family Services’s actions are an exercise of discretion of the family counsellor – Where leave is given for the inspection and copying of the documents. Legislation: Family Law Act 1975 (Cth) ss 10B, 10C, 10D, 10E
Family Law Rules 2004 (Cth) Pt 15.3
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) ch 6
Cases cited: Hatton v Attorney-General of the Commonwealth of Australia (2000) FLC 93-038
Dupont & Chief Commissioner of Police (2015) FLC 93-648
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
Martin & Martin (No.2) [2014] FamCA 232
National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372
Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683
Smirnov v Turova [2009] FMCAfam 1083
Woley & Humboldt (No. 4) [2009] FamCA 546
X Pty Ltd & Merhi [2015] FamCA 622
Division: Division 1 First Instance Number of paragraphs: 48 Date of hearing: 29 November 2021 Place: Adelaide Counsel for the Applicant: The Applicant appeared in person Counsel for the Respondent: Mr Starke Solicitor for the Respondent: Starke Lawyers Counsel for the Subpoenaed Party: Mr Sharp Solicitor for the Subpoenaed Party: Culshaw Miller Counsel for the Independent Children’s Lawyer: Ms Olsson Solicitor for the Independent Children’s Lawyer: Silkwoods ORDERS
ADC 4072 of 2019 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS GABBEY
Applicant
AND: MR CADRIEL
Respondent
AND: INDEPENDENT CHILDREN’S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
17 DECEMBER 2021
THE COURT ORDERS THAT:
1.The mother have leave to inspect and photocopy all documents produced by Ms M, Manager, L Family Services pursuant to subpoena issued on 14 May 2020.
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 pseudonyms Cadriel & Gabbey is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Mr Cadriel (“the father”) and Ms Gabbey (“the mother”) are unable to reach agreement as to the future parenting arrangements for X born in 2016 (“X”) and Y born in 2019 (“Y”) (collectively “the children”).
By subpoena filed and issued on 14 May 2020 directed to Ms M, Manager, L Family Services, the mother sought the following:
A copy of all documents, reports, notes and other records relating to MS GABBEY born on the … 1978 from 2016 to present.
L Family Services complied with the subpoena and documents were lodged in the Registry on 26 May 2020.
On 27 May 2020, L Family Services filed a Notice of Objection to the inspection and or copying of all the documents produced on the following basis:
Family Relationship Counselling notes are inadmissible in Family Law Court as per Section 10E Family Law Act 1975
(As per the original)
The objection was heard by Senior Judicial Registrar Heuer on 15 March 2021.
On 1 April 2021, the Senior Judicial Registrar upheld the objection and ordered that the subpoena issued be set aside. The mother seeks to review the decision of the Senior Judicial Registrar by her Application for Review filed 8 April 2021.
BACKGROUND
The father was born in Country G and the mother was born in Australia. The parties met online in March 2015. In July 2015, the mother travelled to Country G and the parties met in person for the first time. The mother returned for a further occasion between October and December 2015. The parties married in Country G in 2015. The mother returned to Australia in December 2015 and arrangements were made for the father to apply for a visa.
He came to Australia on a tourist visa in April 2018 and eventually was granted a residency visa which enabled him to return to Australia on 22 December 2018.
The parties separated in March 2019 with the father vacating the mother’s residence in April 2019.
The mother alleges that she was the victim of sexual assault by the father and that the relationship albeit of short duration, involved ongoing family violence.
The mother also alleged that the father had sexually abused X.
There has been significant involvement by the South Australian Police (“SAPOL”) in respect of the mother’s allegations, however, it appears that no charges were laid and there is no ongoing investigation.
On 19 June 2020, Judge Kari, as she then was, made orders that provided for the children to live with the mother and that they would spend supervised time with the father each Saturday from 10.00 am until 12 noon and when able to do so the father would spend supervised time with the children at a Children’s Contact Service.
LEGAL PRINCIPLES
The mother acknowledges that she attended at L Family Services between 2016 and 2018 in order to access counselling services. The mother submits that the L Family Services counselling records have forensic purpose in that she considers the documents would demonstrate that during the counselling sessions she disclosed to the counsellor her concerns in respect of the father’s conduct, that he perpetrated family violence and that she was the victim of sexual assault by him.
The objection by L Family Services seems to be based upon the confidentiality of communications in family counselling as set out in s 10D of the Family Law Act 1975 (Cth) (“the Act”) although the submission is confused by the basis for the objection being reliance upon s 10E of the Act.
It is conceded that the counsellor is a person accredited as a family counsellor and is authorised to act on behalf of a designated organisation. The gravamen of the mother’s objection is that the counsellor was not conducting “family counselling” as required by s 10D(1) of the Act and therefore L Family Services are not bound by the prohibition in s 10D(1). For reasons that will be explained, it is curious that L Family Services did not consider utilising the provision of s 10D(3) of the Act, namely:
(3)A family counsellor may disclose a communication if consent to the disclosure is given by:
(a)if the person who made the communication is 18 or over – that person; or
…
The mother attended for counselling. It is conceded that the counselling notes and records only contain information provided by the mother. It is not suggested that L Family Services would be conflicted by the potential to breach the confidentiality of any other person. The underlying philosophy is that if confidentiality is not given the highest level of respect, parties will be discouraged from entering into counselling with a view to resolving their differences. Whilst there is merit in that submission and demonstrably it is the basis of the need to protect confidentiality of communications pursuant to s 10D of the Act, the discretion exists to release the materials if proper to do so.
Whilst s 10D(3) of the Act gives a counsellor a discretion whether to disclose the communication, a party or the Court are not able to require disclosure.
The mother contends that the section only protects communication given in the context of “family counselling”. The mother refers to the decision of Walters FM, as he then was, in Smirnov v Turova [2009] FMCAfam 1083 (“Smirnov”).
The mother refers to her intake form and highlights that the document is silent as to the conditions and restrictions that might apply to the information that passed between the mother and the counsellor.
The intake form is careful to set out the policy adopted by L Family Services as to confidentiality but it does not assist in determining when counselling falls into the category of “family counselling”. It might be obvious in circumstances where the parties to a relationship attend to seek counselling as to their relationship issues but such a consideration may not be immediately apparent where one party attends, in particular where the mother contends that a significant issue of her disclosure focused upon her allegations that the father perpetrated sexual abuse and family violence.
Family counselling is defined in s 10B of the Act as follows:
Family Counselling is a process in which a family counsellor helps:
(a)one or more persons to deal with personal and interpersonal issues in relation to marriage; or
(b)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; or
(c)one or more persons who may apply for a parenting order under section 65C to deal with issues relating to the care of children.
The definition of a “family counsellor” as set out in s 10C is relevant to the confidentiality of communications in s 10D of the Act and the admissibility of communications as set out in s 10E of the Act.
At this stage the mother sought only to inspect and copy the file notes. It may be that if made available to her, she may seek to tender them but that is not a present consideration.
The mother relies on the decision of Smirnov. The circumstances in that case were that the parties were referred to L Family Services counselling for “attachment therapy” in accordance with an order.
His Honour found that L Family Services had not advised the parties that the process would not be reportable or the consequences of the application of ss 10D and 10E of the Act.
His Honour found that the orders that underpinned the referral to L Family Services was for the purpose of attachment therapy and not family counselling.
In addition the father did not consent to the communication being disclosed.
I do not consider that it is a significant leap to find that the mother sought assistance from L Family Services in order to better enable her “to deal with personal and interpersonal issues” and “issues relating to the care of the children”.
Whilst the intake process could be made more transparent by the inclusion of an advice that if a party or parties is or are attending for “family counselling” then issues of confidentiality arise in respect of s 10D of the Act and the admissibility of communication in respect of s 10E.
Nonetheless, I consider that the initial position adopted by L Family Services, namely to object to the inspection and copying of documents produced pursuant to the subpoena has initial merit.
RELEVANCE
Whilst it is unnecessary to take the matter further in circumstances where the admissibility of the evidence is likely to be prohibited and in any event the mother knows what was said to the counsellor, a question arises as to whether the evidence is likely to be relevant.
Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) imposes an obligation of full and frank disclosure on parties to Family Court proceedings and the manner by which that obligation must be fulfilled.
The general practice as it relates to subpoenas to produce documents is explained by Smithers J in Lucas Industries Ltd v Hewitt (1978) 18 ALR 555 at 570:
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
A named person or a person who has sufficient interest in a subpoena may seek an order for the subpoena to be set aside in whole or in part, or may object to production, inspection or photocopying of the documents required by subpoena.[1]
[1] Family Law Rules 2004 (Cth) r 6.38.
The primary test is the relevance of the documents to the issues before the Court. The Full Court in Hatton v Attorney-General of the Commonwealth of Australia (2000) FLC 93-038 (“Hatton”) considered the test of relevance and set out examples of where a court may determine where it is proper to set aside a subpoena:
·If the subpoena is for an improper purpose, namely to obtain discovery against a third party;
·Where it might be oppressive to comply with the subpoena;
·Where a party embarks upon a “fishing expedition”; and
·Where the subpoena lacks relevance to the proceedings.
The decision of X Pty Ltd & Merhi [2015] FamCA 622 concerned an application seeking review of orders made by the Registrar, dismissing objections to subpoenas issued by the Court. The applicants were twelve companies that had been served with subpoenas (companies of which the husband had an interest in). McClelland J (as he then was) found that the subpoenas were inappropriate because:
43.… Essentially, they are speculative in the sense that they are a “train of inquiry” that might assist the wife’s case rather than it being “on the cards” that they will result in the production of documents that will be relevant to the issues in the case. To that extent the subpoenas to those companies amount to “fishing” and should be set aside.
His Honour gave an overview of the law referring to the power of the Court to issue a subpoena set out in Pt 15.3 of the Family Law Rules 2004 (Cth), and the power to set aside a subpoena so issued.
At [25] his Honour refers to Hatton, in particular the relevant stages of having a third party bring documents to the Court being a three step process:-
The relevant stages of having a third party bring documents to court were described in Hatton (supra) at [38], by reference to National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372, as being a three step process:
The first [step] is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise…This application by the applicant companies concerns the first step referred to in Hatton (supra) …
In Dupont & Chief Commissioner of Police (2015) FLC 93-648 (“Dupont”) the Full Court applied the principles enunciated in National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372 and Hatton (supra) and found that a subpoena must only be used for a legitimate forensic purpose. A subpoena that does not have a legitimate forensic purpose is an abuse of process and must be set aside. In Dupont, an objection was made to the production of documents under subpoena on public interest immunity grounds. The Full Court helpfully outlined the “usual procedure adopted”[2] when a subpoena for the production of documents is issued:
[2] Dupont & Chief Commissioner of Police (2015) 93-648 at [35].
36.… This first step involves the determination of any objections to the subpoena or to the production of the documents. It is at this stage that the court will consider any claim by the person to have the subpoena set aside on the basis it is oppressive, is an abuse of process and the like and, relevantly, public interest immunity. …
…
40.The second step is the decision concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents produced to the court and under its control. In this regard, the crucial question is whether the documents have apparent relevance to the matters in issue or are themselves the subject matter of the litigation. …
41.The third step is the admission into evidence of a document or its use in the process of taking evidence. It is at this step that questions between the parties of relevance in fact and admissibility are determined.
(Citations omitted)
In Martin & Martin (No.2) [2014] FamCA 232 (“Martin”) Cronin J found that the focus of the Court should be whether it was “on the cards”[3] that the documents would materially assist the proceedings. At [28], Cronin J referred to his own comments in Woley & Humboldt (No. 4) [2009] FamCA 546, where he said:
[3] Martin & Martin (No.2) [2014] FamCA 232 at [28].
39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena which have “apparent relevance” were that inter alia:
(1)The relevance of documents was not limited to documents directly admissible in themselves in proof of an issue raised in pleadings; and
(2)If a class of document which has material forensic relevance could be shown to exist, then a subpoena would not normally be set aside.
40.In White v Tulloch (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having “a sufficient apparent connection to justify their production or inspection”.
41.In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306, Beaumont J saw relevance as something where a document “could possibly throw light on the issues in the main case”.
42.In Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said:
Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could “possibly throw light” on the issues in the substantive proceedings, or that it appears to be “on the cards” that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.
In Martin at [29], Cronin J also referred to his decision in Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683 where he observed:
49.The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determine that at an early stage? The issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors where Byrne J said:
The degree of relevance for this purpose is not high: the inspecting party need only show a legitimate forensic purpose in the inspection. A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.
50.Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.
51.The onus in establishing the relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.
(Footnotes omitted)
HAS L FAMILY SERVICES EXERCISED ITS DISCRETION TO DISCLOSE THE DOCUMENTS
Part way through the mother’s submissions in support of her application, it was revealed that an arrangement had been entered into between the mother and L Family Services such that she was given access to the file and the notes of the counsellor and was able to transcribe them.
Whilst the mother was not given a copy of the original notes, she is satisfied that she had every opportunity to transcribe the notes in detail. It seems from her presentation in displaying a bundle of documents which represents the typewritten notes made by the mother during the inspection that not much else remains to be done.
The actions of L Family Services in allowing the mother to inspect the notes seems to be an exercise of the discretion of the family counsellor as provided for in s 10D(3)(a) of the Act.
All that remains is to determine whether the mother should be permitted to copy the notes. The notes represent information given by the mother. In circumstances where she has been able to inspect the notes in detail and at length, there can be no sensible objection to allowing the mother to copy them.
CONCLUSION
I propose leave be given to the mother to inspect and copy documents produced in answer to the mother’s subpoena directed to Ms M, Manager, L Family Services.
I make orders as appear at the commencement of these reasons.
I certify that the preceding forty-eight (48) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 17 December 2021
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