Choat and Grendel
[2018] FamCA 579
•30 July 2018
FAMILY COURT OF AUSTRALIA
| CHOAT & GRENDEL | [2018] FamCA 579 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Objection to the inspection of material produced under subpoena – Where the mother asserts that certain material in her clinical psychologist records is confidential and attracts public interest immunity – Where the mother’s relationship with her psychologist does not attract public interest immunity – Where the mother asserts that certain material in her clinical psychologist’s records is not relevant to any issue to be determined in the parenting proceedings – Where that objection is upheld. |
| Family Law Act 1975 (Cth) Criminal Procedure Act 1986 (NSW) |
| Benson & Hughes (1994) FLC 92-483 Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 Feinster & Feinster and Anor [2006] FamCA 232 |
| APPLICANT: | Mr Choat |
| RESPONDENT: | Ms Grendel |
| INDEPENDENT CHILDREN’S LAWYER: | Ms Rutkowska |
| FILE NUMBER: | SYC | 2065 | of | 2010 |
| DATE DELIVERED: | 30 July 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Watts J |
| HEARING DATE: | 5 July 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Litigant in person |
| SOLICITOR FOR THE RESPONDENT: | Litigant in person |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ark Law |
Orders
The mother be permitted to redact from the notes produced by Ms B:
1.1.The first bullet point of the notes on 18 February 2014, the first and second bullet point of the notes on 25 August 2014 and the 21 October 2014 notes together with additional references at about point 5 of the page of notes on 25 August 2014; the first dot point of the notes on 20 January 2015 and the third dot point on the notes of 4 August 2015;
1.2.The counselling notes dated 6 June 2016, 4 July 2016, 25 August 2016, 29 August 2016 and 4 October 2016 be removed in their entirety and the last bullet point of the notes of 2 August 2016, the first and second bullet points of the notes of 5 September 2016, and third line of the notes of 28 November 2016;
1.3.Any reference in any document that identifies the mother’s place of residence or telephone number.
As soon as is practicable:
2.1.The mother attend the Exhibits Section of the Sydney Registry and photocopy those pages which are to contain redactions in accordance with order 1;
2.2.The mother is to redact words in accordance with order 1 and replace the relevant pages in the bundle with the redacted copies;
2.3.The original unredacted copies are to be placed in a sealed envelope;
2.4.The mother is to give written notice to the father and the Independent Children's Lawyer as soon as possible that the records with redacted copies are now ready for inspection.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Choat & Grendel has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 2065 of 2010
| Mr Choat |
Applicant
And
| Ms Grendel |
Respondent
REASONS FOR JUDGMENT
On 7 February 2018, I granted leave to the Independent Children’s Lawyer to issue a subpoena for the mother’s counselling notes. I gave liberty to the mother to inspect the documents and then indicate whether or not she objected to the Independent Children’s Lawyer and father seeing the material.
The subpoena is sought in the context of final parenting proceedings in respect of a child who is 12 years of age. The mother alleges she herself has been the victim of family violence at the hands of the father including being a victim of his alleged cybercrime in 2011 and 2012.
The mother fears the father might use part of her health records to harm her outside this current court case.
Both Ms B, the mother’s clinical psychologist and the mother object to the Independent Children’s Lawyer and the father seeing the mother’s counselling records. The mother limited her objection to those parts of the notes which contain details of trauma suffered by members of her family, refer to incidents that occurred when she was in high school and disclose the mother’s residential address and telephone number.
The mother seeks, in relation to the counselling notes detailing trauma suffered by members of her family, that the first bullet point of 18 February 2014, the first and second bullet point of 25 August 2014 and the 21 October 2014 notes, be either removed or redacted from the subpoenaed material. In addition, there are also references at about point 5 of the page of notes on 25 August 2014; the first dot point of the notes on 20 January 2015 and the third dot point on the notes of 4 August 2015.
The mother also seeks to retain confidentiality as to discussions with her counsellor about experiences she had when she was in high school, and accordingly, the counselling notes dated 6 June 2016, 4 July 2016, 25 August 2016, 29 August 2016 and 4 October 2016 be removed in their entirety and that the last bullet point of 2 August 2016, the first and second bullet points of 5 September 2016, and third line of 28 November 2016 of the notes be redacted.
The mother objects on the following grounds:
7.1.That communications with her psychologist are confidential; and
7.2.That they can have no relevance to the matters in dispute in these proceedings.
The father alleges that the mother has alienated the child from him and argues that this behaviour may emanate from the mother’s mental status. He seeks to look at the subpoenaed material to know what has happened to the mother in the past on the basis that events in the mother’s past may have contributed to her mental status. The father drew attention to [136] of the family report of Ms C, dated 21 June 2018, which states:
Many survivors of family violence find that they experience a number of psychological effects, which quite understandably may cause significant challenges for them, and interfere with their parenting and capacity to respond appropriately to their children’s needs. It is possible that [the mother’s] behaviour has been directly impacted by the abuse she claims has been perpetrated by [the father].
The father argued this was demonstrative of his point that past experiences may impact upon the mother’s parenting capacity.
In relation to the first ground, there is no doubt that the communication between the mother and her therapist is confidential.
However, in Feinster & Feinster and Anor [2006] FamCA 232, I found that the ordinary psychiatric/patient relationship does not attract a public interest immunity. That finding was applied by Aldridge J in Wenlack & Cimorelli [2013] FamCA 602.
The seminal decision of R v Young [1999] NSWCCA 166 considered whether communications between a victim of sexual assault and a therapist could be seen as a new category attracting public interest immunity. Four of the five judges found that it did not. Spigelman CJ said:
[92] In any event, this is not an appropriate occasion on which to establish this new category of privilege. First, it has not been demonstrated that the privilege propounded has attained the requisite level of community acceptance, as a special case entitling treatment that differs from other confidential relationships. Secondly, the evidentiary material presented to the Court is much too limited to take such a significant step.
[93] The recognition of a new category of privilege requires the formulation of public policy by the courts, within the confines of the proper role of the courts. It is only appropriate for the courts to recognise a category of public policy which is capable of precise statement, and which reflects so widely held an opinion, that the Court's reasoning can be described in terms of 'recognition' rather than 'creation'.
….
[114] Affidavits in support of claims of public interest immunity have often been criticised for their amorphous quality. General conclusory assertions are not acceptable. (See eg Sankey v Whitlam supra at 96 per Mason J).
[115] Before a new public policy is to be recognised, the supporting material would need to be of a qualitatively different order to that presented in the case. At the least, the Court would expect a systematic review of expert literature on the significance of confidentiality in the counselling relationship. The Court would also expect a review of an expert body of opinion establishing why sexual counselling services ought to be treated differently from other counselling services. In the seminal case before the United States Supreme Court, both the American Psychiatric Association and the American Psychological Association set out relevant studies in their amici curiae briefs filed with the Court. (See Jaffee v Redmond at 345 fn 9).
[116] The Court would need to be satisfied that the material presented to the Court represented the full range of expert opinion on the relevant matters and that, where there were divergences in that expert opinion, the differences had been properly tested. The Court would also need to be satisfied that the materials before the Court covered the full range of relevant matters, and was not confined to the narrow specialisations immediately relevant, in order to overcome the possibility of special pleading that sometimes arises from a mixture of self-interest and obliviousness to considerations external to the specific field of expertise.
The common law governs pre-trial procedures unless statute intervenes (see Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49 at [18]-[28]). In New South Wales that part of the decision in R v Young to which I have referred has been reversed in criminal proceedings for a sexual assault offence in respect of counselling communication relating to the alleged victim by what is now s 298(1) of the Criminal Procedure Act 1986 (NSW). The current proceedings are conducted under Commonwealth legislation on the civil standard. There is no comparable statutory provision that applies to pre-trial procedure in respect to confidential communications.
In Benson & Hughes (1994) FLC 92-483, Chisholm J noted that since the House of Lords’ decision in D v National Society for the Prevention of Cruelty to Children [1978] AC 171, the common law recognised that the confidentiality of information disclosing the identity of a person who reported suspected child abuse to a child protection organisation attracted public interest immunity.
Another example of where a public interest immunity has been extended by analogy was Goldy & Goldy (No. 2) [2011] FamCA 418 where Dawe J held that “the Kids Helpline” attracted public interest immunity because it was an organisation which relied upon its confidentiality for its very existence.
More recently, some judges have suggested that in parenting cases a therapeutic counselling relationship might attract public interest immunity if the release of notes might victimise a parent or affect their parenting capacity. Berman J in Smith & Duke [2015] FamCA 990 at [49] seemingly quotes Judge Harman in Jermyn & Carling (2012) FMCAfam 814 with approval. The mother in this case relies on statements made by Cronin J in Merrill & Burt [2015] FamCA 159. At [38] His Honour quotes what Spigelman CJ said in R v Young at [93] (set out above) and then Cronin J goes on to say:
The general public interest in confidence in therapeutic relationships may not be a recognised category, but the specific interest in protecting the best interests of children – in this case, by maintaining the confidence of a therapeutic relationship which improves the mother’s ability to parent the children – may be a category capable of ‘recognition’.[1]
[1] Whilst the published decision seems to attribute these words to Spigelman CJ in R v Young, that is an obvious formatting error.
Cronin J concludes at [39]:
….The Act (a reference to the Family Law Act) consistently places the child or children’s best interests at the forefront of any decision regarding parenting such that the courts may well have recognised, to echo Spigelman J’s [sic] words (a reference to [93] in R v Young), the reconciliation of these two principles through which a confidential therapeutic relationship may be protected. There is no evidence here that these children are at risk such that their best interests would be served by breaking the confidentiality of the therapeutic relationship
I prefer the view expressed by Spigelman CJ in R v Young as to the manner in which new categories of public immunity interest may be recognised and accordingly, with respect, I am reticent to adopt the new category suggested by Cronin J, absent proper evidentiary material and demonstration of a level of community acceptance of this new category of public interest immunity.
Consequently I overrule the first objection to the release of the records of the mother’s communications with her psychologist which is based upon the grounds that those records are confidential.
The mother is, however, successful on her second ground.
After inspecting the subpoenaed material, I find that the counselling notes relating to the mother’s family members and to incidents during the mother’s high school years, are not relevant to any issue to be determined during the final parenting hearing. Accordingly, I uphold the mother’s objections to disclosing those parts of the subpoenaed counselling notes.
Given the mother’s allegations, it is also appropriate to allow the mother to redact any reference to her address and telephone number.
In those circumstances, I grant her liberty to redact and remove the aforementioned material. I shall make orders accordingly.
I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Watts delivered on 30 July 2018
Associate:
Date: 30.7.2018
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