Chrystie & Dellas
[2021] FamCA 628
•27 August 2021
FAMILY COURT OF AUSTRALIA
Chrystie & Dellas [2021] FamCA 628
File number(s): CAC 1320 of 2014 Judgment of: ALTOBELLI J Date of judgment: 27 August 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Review of a registrar’s decision to strike out subpoena – Where subpoenaed party objects to the subpoena – Discussion of public interest immunity principles – Where subpoena found to lack relevance – Application for review dismissed. Legislation: Family Law Act 1975 (Cth) s 37A
Family Law Rules 2004 (Cth) rr 15.41, 18.08, 18.10
Cases cited: Choat & Grendel [2018] FamCA 579
Crawford & Sisinis and Anor [2014] FamCA 912
R v Young (1999) 46 NSWLR 681
Smith & Duke (2015) 54 Fam LR 221
Tsocas & Rilak [2018] FamCA 981
Number of paragraphs: 24 Date of last submission/s: 16 June 2021 Date of hearing: Heard on the papers Place: Sydney Solicitor for the Applicant: Atw Family Law Solicitor for the Respondent: Boadicea Legal Services The Subpoenaed Party: In person Solicitor for the Independent Children's Lawyer: Phillip A Wilkins & Associates ORDERS
CAC 1320 of 2014 BETWEEN: MR CHRYSTIE
Applicant
AND: MS DELLAS
Respondent
MR B
Subpoenaed partyINDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
ALTOBELLI J
DATE OF ORDER:
27 AUGUST 2021
THE COURT ORDERS THAT:
1.The Application in a Case filed by the father on 23 April 2021 be dismissed.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Chrystie & Dellas has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
ALTOBELLI J:
INTRODUCTION
These reasons for judgment explain the orders the Court has made in this matter.
BACKGROUND
The substantive proceedings relate to a child, X, who is 11 years old. The proceedings relate to the parenting orders that are in his best interests.
On 5 March 2021 the Independent Children’s Lawyer caused a subpoena to be issued to Mr B, a clinical psychologist who provides treatment to X (hereafter referred to as ‘the psychologist’).
On 19 March 2021 the psychologist caused to be filed a Notice of Objection. The reasons stated were as follows:
I believe that producing my clinical case notes from sessions with my client X, given the kind of things X has stated in sessions and are reflected in my notes, seriously risk putting X in future situations with his father that are emotionally and psychologically unsafe for him. In addition, I believe that the material in my clinical case notes are of a nature such that they could severely adversely effect [sic] the ongoing relationship that X has to his father and ought to be protected, both for X and his father’s sake.
I also belief [sic] that the therapeutic relationship that I have managed to build up with X over many years of working with him, which has only recently got to the point where X trusts me enough to engage fully with me and let me know all that is going on for him psychologically, could be threatened and derailed if X were to discover that what he has painstakingly let me know in confidence has been used for court purpose and exposed. I believe that X would no longer feel able to access his therapy and make use of it in the way that he needs to in order to avail himself of necessary ongoing help and support.
My primary duty of care as a clinical psychologist is to my client, X, and I believe that producing my clinical notes would amount to me breaching this duty of care.
On 31 March 2021 the matter came before Registrar Maitland. The orders made by the learned Registrar indicate that, firstly, the Independent Children’s Lawyer no longer pressed the subpoena; and secondly the Court asked the parties if they required reasons for the decision to strike out the subpoena and all the parties declined. The order further notes that the mother, father, Independent Children’s Lawyer, and the psychologist all appeared on this occasion. The learned Registrar ordered, in effect, that the subpoena to the psychologist be struck out.
On 23 April 2021 the father (the Respondent in the substantive proceedings and the Applicant in the present application) filed an application for review of the learned Registrar’s order. The orders sought were as follows:
1.That pursuant to Rule 18.08 of the Family Law Rules, the Orders of Registrar Maitland of 31 March 2021 be reviewed.
2.That the Notice of Objection filed by Mr B on 19 March 2021 be dismissed.
3.That Mr B produce the documents listed in Part E of the subpoena to Mr B filed 5 March 2021 to the Family Court within 14 days of the date of these Orders.
On 2 June 2021 I made the following orders in chambers:
1.By no later than 4pm on 9 June 2021, the subpoena objector file and serve any submissions on which he seeks to rely, with respect to the Application for Review of the decision of Registrar Maitland dated 31 March 2021, not exceeding 500 words in length.
2.Within 7 days thereafter, the Applicant file and serve any submissions on which he seeks to rely, not exceeding 500 words in length.
3.Within 7 days thereafter, the Respondent file and serve any submissions on which she seeks to rely, not exceeding 500 words in length.
4.Within 7 days thereafter, the Independent Children’s Lawyer file and serve any submissions on which they seek to rely, not exceeding 500 words in length.
5.Thereafter, judgment be reserved and the matter be determined on the papers.
On 9 June 2021 the psychologist provided the following submissions by way of an email bearing that date, marked as exhibit SP1:
1.My first objection is that the review is an abuse of process on the following grounds
The Independent Children’s Lawyer has withdrawn the original subpoena for my documents and has not re-instated any further subpoena so there is no subpoena currently in place on which this review can be based.
In addition, the original subpoena was far too vague and wide ranging and as such in my view amounts to a fishing expedition.
2.My second objection pertains to the original objection that I submitted previously when I initially objected to the subpoena. I have attached my original objection to this email for your reference.
3.Thirdly, the only costs that I have been supplied with to fulfil the subpoena are a cheque for $50 attached to the original subpoena which I did not cash. This will fall far short of the costs that it will entail for me to supply all the documents requested in the subpoena as they are voluminous and the costs entailed would include my time as well as substantial compiling, printing , secretarial and photocopying costs.
(Emphasis in the original)
On 16 June 2021 the solicitors for the father filed written submissions, the substance of which will be referred to below, where relevant.
THE APPLICABLE LAW
This is an application for review and accordingly, it is a hearing de novo.
Rule 18.10 of the Family Law Rules 2004 (Cth) (‘the Rules’) sets out how a review of a Registrar’s decision should be conducted:
(1)A court must hear an application for review of an order of a Judicial Registrar, Registrar or Deputy Registrar as an original hearing.
There is a helpful note that reads:
In an original hearing, the court rehears the whole matter and does not simply review the decision of the original court.
Subrule 2 details what evidence may be received by the Court:
(2) The court may receive as evidence:
(a)any affidavit or exhibit tendered in the first hearing;
(b)any further affidavit or exhibit;
(c)the transcript (if any) of the first hearing; or
(d)if a transcript is not available, an affidavit about the evidence that was adduced at the first hearing, sworn by a person who was present at the first hearing.
The relevant law in relation to subpoenas is helpfully summarised by Berman J in Smith & Duke (2015) 54 Fam LR 221:
SUBPOENA PROCESS
14. The principles for issuing a subpoena to a non-party are:
(1)that the requesting party is only able to obtain a document or documents relevant to an issue in the proceedings; and
(2)that the steps to be followed are conveniently set out in the remarks of President Moffit in National Employers Mutual General Association Limited v Waind & Hill [1978] 1 NSW LR 372 at 381:
The first 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 documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of documents, which include 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. It is the third step which alone provides material upon which ultimate decisions in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.
15.In Hatton v Attorney General of the Commonwealth of Australia (2000) FLC 93-038 the Full Court set out examples of where a court may determine that 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”.
•That the subpoena should be set aside because it lacks relevance to the proceedings.
THE SUBPOENA OBJECTION
The first ground of objection by the psychologist appears to be a contention that the review is an abuse of process. The basis of this is the suggestion that the Independent Children’s Lawyer withdrew the subpoena, and thus there was no basis on which the review could be based. There is no substance to this ground of objection. The application for review relates to the order made by the learned Registrar. Section 37A(9) of the Family Law Act 1975 (Cth) (‘the Act’) and
r 18.08(1) of the Rules expressly provide that a party to the proceedings in which a Registrar has exercised a delegated power may apply for a review of the order made by the Registrar. As the father is a party to the proceedings, he was well entitled to make the review application.
The third ground of objection to the review application appears to relate to the conduct money of $50 attached to the original subpoena. The psychologist contends that this amount falls short of the actual costs involved for him to supply the documents requested. There is no substance to this ground of objection. The cost has not been incurred.
The second ground of objection, and the only substantive ground, refers to the reasons for objection contained in the psychologist’s initial Notice of Objection. In substance, the psychologist is contending that it is not in the best interests of X that the notes and records pertaining to his engagement in a therapeutic context with the psychologist be made available to the parties, including his father. The psychologist also contends that the therapeutic relationship that he has with X would be undermined, if not destroyed, by the production of records which would seem to betray the confidentiality of their therapeutic relationship.
As there is no separate ground or basis for the confidentiality of the records of the treating psychologist, it is inferred that the only possible basis for the objection would be public interest immunity. In Smith & Duke, Berman J states:
PUBLIC INTEREST IMMUNITY
42.In Cooper & Cooper (2012) 48 Fam LR 425 at [48], the Court held that whilst it would be ideal if all family counselling services could offer the same protection, there is “no basis, founded upon legislative interpretation and absent a consideration of public policy considerations…which would warrant such position being arrived at…”.
43.In Benson & Hughes (1994) FLC 92-483 Chisolm J found that:
There is a general public interest in the proper administration of justice which is promoted by the principle that “all relevant evidence should be adduced to the court when it makes its decision” (Baker v Campbell (1983) 153 CLR 52 at 66 per Gibbs CJ)
44.His Honour therefore held that public interest immunity did exist in this instance but that it should be weighed against the interests of the child. At page 81,045 his Honour considered how a court should balance the paramountcy principle when considering cases in which “there is some clear and important other conflicting interest” and concludes “the law requires the court to take account of the child’s welfare but balance it against the other interests or policy”.
45.Public interest immunity was also used to successfully uphold an objection to a subpoena in Goldy & Goldy (No 2) [2011] FamCA 418 in which a party sought to subpoena “the Kids Helpline”. Dawe J considered the Court:
…should be very wary about issuing subpoenas to an organisation which relies upon its confidentiality for its very existence. The benefit of the service provided by Kids Helpline to children and young people who use that service is significant.
46.Accordingly, her Honour upheld the objection on the grounds of public interest immunity.
PSYCHOLOGISTS AND PUBLIC INTEREST IMMUNITY
47.In Feinster & Feinster and Anor [2006] FamCA 232 Watts J considered that:
Public interest immunity differs from privilege as it operates for the benefit of the public interest in general and does not protect private relationships or interests.
48.His Honour noted that while a preference had been expressed to narrow a claim of public interest immunity to situations involving a government function, it has “also been said that the categories giving rise to public interest immunity are not closed and they may be extended by analogy with a known category of public interest exceptions”.
49.In Jermyn & Garling (2012) FMCAfam 814 the father issued a subpoena to the mother’s psychologist in relation to her handwritten notes from the treatment of the mother’s experiences of childhood sexual abuse. The mother and the psychologist objected on the grounds of relevance and public interests. The Court undertook an extensive review of the various authorities both in Australia and overseas and held that to release the additional information would be to “victimise her and inappropriately and in a fashion that would be against the public interest”.
INTERESTS OF THE CHILD
50.Section 69ZN sets out the principles for conducting child related proceedings and the first principle is that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child.
51.It has not been argued however that the disclosure of the information is likely to negatively impact upon the child other than by the further exacerbation of the proceedings and the potential loss of faith in a process would seem important in all the circumstances namely, the involvement of the child in therapy.
A contrary view has been expressed by Watts J in Choat & Grendel [2018] FamCA 579 where his Honour states:
10.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.
11.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.
12.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.
13.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.
14.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.
15.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
16. 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
17.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.
Whilst the published decision seems to attribute these words to Spigelman CJ in R v Young, that is an obvious formatting error.
(Emphasis in the original)
DISCUSSION
For the reasons given by Watts J, I prefer his and Chief Justice Spigelman’s views. The extension of public interest immunity to the records of a treating psychologist is not a matter that should be decided in the present context where the broader issues referred to by Spigelman CJ in R v Young (1999) 46 NSWLR 681 have not been canvassed. Nonetheless, this Court records its tentative view that it finds the concerns of the psychologist to be compelling. Consistent with cases such as Crawford & Sisinis & Anors [2014] FamCA 912 and Tsocas & Rilak [2018] FamCA 981 the needs of X are a relevant principle to guide the conduct of the case. There are, of course, other relevant principles and issues.
In any event, this Court dismisses the application for review.
The Court accepts the father’s submission that the Affidavit filed by the psychologist on 16 June 2021 annexing his two reports dated 17 June 2019 and 18 January 2021 cannot possibly be viewed as the evidence of a person treating the child for the purposes of r 15.41(1)(a) of the Rules. The reports indicate that the psychologist has gone well beyond merely giving evidence about the matters referred to in subparagraphs (i)-(iii) of r 15.41(1)(a). For example, in both reports, the psychologist expresses opinions about what is the ultimate issue in this case, i.e., the nature and extent of the father’s time with X in a prospective sense.
Given that the evidence from the psychologist is inadmissible, what is the ostensible purpose of the subpoena? In other words, how is it relevant? When the submissions made on behalf of the father are scrutinised, it seems that the purpose is to demonstrate, in effect, the lack of weight to be placed on the evidence because the psychologist has become partisan in merely reinforcing to the child the mother’s version of events. The father questions the psychologist’s capacity to continue to provide therapeutic assistance to the child. The father also refers to the psychologist’s notes providing evidence of what the child has told his father, whilst at the same time acknowledging that this evidence is available by way of a single joint expert report already available to the Court.
In the circumstances it is the father’s own submissions that demonstrate to the Court that the material sought by way of subpoena to the psychologist is irrelevant. Even though the father has concerns about the treatment being provided by the psychologist to the child, there is no application on foot in relation to this. The documents are irrelevant. The subpoena should have been dismissed. The learned Registrar made the correct decision. Accordingly, the application for review is dismissed.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Altobelli. Associate:
Dated: 27 August 2021
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