COOPER & COOPER
[2012] FMCAfam 789
•3 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| COOPER & COOPER | [2012] FMCAfam 789 |
| FAMILY LAW – Practice and Procedure – admissibility of evidence – affidavit and report of child’s psychologist. |
| Family Law Act 1975, ss.4, 10B-E, 60CA, 60CG, 60K, 62G, 69ZN, 69ZR, 69ZV, 69ZX Acts Interpretation Act 1901 Family Law Rules 2004, 15.41(1), 15.42, 15.49, 15.55 Federal Magistrates Court Rules 2001, 1.05, 15.06, 15.07, 15.12 Evidence Act 1995 (Cth) ss.55, 56, 69, 76, 79, 131, 135, 136 Evidence Act 1995 (NSW) ss.76, 79, 126B Judiciary Act 1903 |
| Makita (Aust.) Pty Ltd v Sprowles(2001) NSWCA 305 Lord Arbinger v Ashton (1873) 17 LR Eq 358 Mellish v Martinson 1993 CanLII 1825 R v SLR 1991 CanLII 4532 R v Gruenke (1991) CanLII 40 |
| Applicant: | MS COOPER |
| Respondent: | MR COOPER |
| File Number: | PAC 1809 of 2011 |
| Judgment of: | Harman FM |
| Hearing dates: | 16 & 17 July 2012 |
| Date of Last Submission: | 17 July 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 3 August 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Wong |
| Solicitors for the Applicant: | Adams & Partners Lawyers |
| Counsel for the Respondent: | Mr Greenaway |
| Solicitors for the Respondent: | Lewarne & Goldsmith |
ORDERS
I admit into evidence the Affidavit of Ms H filed 13 July 2012.
I adjourn these proceedings Part Heard to resume on 17 September 2012.
I publish my reasons.
IT IS NOTED that publication of this judgment under the pseudonym Cooper & Cooper is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 1809 of 2011
| MS COOPER |
Applicant
And
| MR COOPER |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing applications for parenting Orders by the parents of two children:
a)[X] born [in] 1996 (presently aged 15.5 years); and
b)[Y] born [in] 2005 (presently aged 6.5 years).
The Applicant in the proceedings is [X] and [Y]’s mother, Ms Cooper.
The Respondent in the proceedings is [X] and [Y]’s father, Mr Cooper.
A Second Applicant, Ms M, is also involved in the proceedings but only with respect to the property adjustment aspect of same (which issues are to be heard and determined at the same time).
These proceedings were listed for a two day trial to commence 16 July 2012. On the first day of the trial, and consuming the vast majority thereof, argument arose regarding the introduction into evidence of a report of a child and family psychologist, Ms H, dated 2 July 2012. The report is annexed to an Affidavit affirmed by Ms H on 13 July 2012 and filed the same date.
Controversy arises with respect to reliance by the Applicant mother upon this evidence on a number of bases. To obtain some appreciation of same a brief consideration of the factual chronology of the matter is instructive.
Chronology
The father, Mr Cooper, was born [in] 1973 and is, at the date of the trial, aged 38 years.
The mother, Ms Cooper, was born [in] 1977 and is, at the date of the trial, aged 35 years.
Mr Cooper and Ms Cooper commenced to cohabit in 1993 and were married [in] 1997.
Mr Cooper and Ms Cooper separated on 23 June 2012. On that date (and there being some controversy between the parties as to the circumstances of separation which controversy is not germane for the purpose of this determination) Mr Cooper left the home. After a period (the exact length of same being subject to some controversy but of weeks duration) Mr Cooper returned to the matrimonial home and the parties thereafter lived separately and apart under the one roof from approximately October 2010 until 21 September 2011.
From 21 September 2011, Mr Cooper obtained and moved to independent rental accommodation and Ms Cooper continued to reside in the former matrimonial home.
Immediately prior to Mr Cooper vacating the home, Orders had been made which required the listing and sale of former matrimonial home. By the time of trial the sale has occurred and the net proceeds of sale are held in trust on behalf of the parties.
The evidence of the parties would appear largely non-controversial as to the fact that during the initial period of physical separation (June 2010 onwards) and for a period of some weeks (the exact period being of some controversy) there was little if any time spent with or communication between Mr Cooper and the children. However, arrangements were then put into place whereby the children spent regular time with Mr Cooper and, clearly, after the parties had both returned to reside under the one roof the children saw each of their parents with some frequency.
Following Mr Cooper’s voluntary removal from the matrimonial home on 21 September 2011, an Application in a Case was filed by him seeking interim parenting Orders. Prior to the filing of this Application, a number of procedural Orders and directions had been made including an Order for the preparation of a family report.
Family report interviews occurred with a family consultant on 6 October 2011. On that date, interviews were conducted with each of the parents and with each of [X] and [Y].
Following the interviews on 6 October 2011, no further face to face interviews or observations were conducted by the family consultant although two telephone calls occurred on 15 November 2011 being one each with Mr Cooper and Ms Cooper.
A family report was ultimately produced by the family consultant
(Ms B) and dated 21 November 2011. That report was released to the parties by Order of 22 November 2011.
On the day after the family report interviews and observations, being 7 October 2011, the parties presented before the Court with respect to the hearing of the interim application made by Mr Cooper by the above Application in a Case. As a consequence of that hearing, Orders were made by Federal Magistrate Dunkley in the following terms:
1. The parties shall have Equal Shared Parental Responsibility for [X] born [in] 1996 and [Y] born [in] 2005.
2. [X] shall live with each parent at days and at times as accord with his wishes as between discussions with him and his parents.
3. [Y] shall live equally with each parent in a week about arrangement from 6.00pm on Friday to 6.00pm Friday the following week.
Further Orders were made to define the commencement and continuation of the above week about pattern and for other special events and special occasions. A number of specific issues Orders were also made.
When the matter presented for trial to commence 16 July 2012 the parties and each of them had filed an Application or Response setting out the relief proposed by them both as to property adjustment and parenting. Only the parenting aspects thereof are relevant for the purpose of these proceedings.
The relief proposed by the mother is in the following terms:
1. That the Mother and Father have equal shared parental responsibility for the long term care, welfare and development of the children, [X] born [in] 1996 and [Y] born [in] 2005.
2. The children shall live with the Mother.
3. The children shall spend time with the Father as follows:
a. Each Monday and Thursday from after school until 8pm.
b. Each alternate weekend from after school Friday until 5pm Sunday.
c. For one half of each NSW gazetted school holiday period as agreed between the parties and failing agreement the first half in 2011 and each alternate year thereafter and the second half in 2012 and each alternate year thereafter.
The father by his Amended Response proposes parenting Orders in the following terms:
1. That the mother and father have equal shared parental responsibility for the long term care, welfare and development of the children, [X] born [in] 1996 and [Y] born [in] 2005.
2. That [Y] live with the father from Friday afternoon after school until the commencement of school on Friday morning of the following week and each alternate week thereafter.
3. That [Y] will live with the mother from Friday at the conclusion of school in week 2 until Friday morning before school the following week and each alternate week thereafter.
It is germane to note that no Orders regarding the living or spend time with arrangements for [X] are sought by Mr Cooper. Further, the parties by reference to their filed evidence are largely in agreement that since Mr Cooper’s vacation of the former matrimonial home in September 2011 that [X] has continued to reside in that home with his mother and has spent very little and very infrequent time with his father.
In November of 2011 Ms Cooper approached a child and family psychologist, Ms H, following a referral provided to her by a General Practitioner and for the purpose of youngest of the two children, [Y], then receiving counselling and psychological support and assistance from Ms H.
Ms H’s notes have been subpoenaed in these proceedings and those documents have been released to the parties for inspection as a consequence of the administrative process which applies under the Federal Magistrates Court Rules and without objection. Those records have not, with some exceptions, been tendered into evidence at this point although it is germane to note that the following tenders have been made with respect to the issue to which these reasons relate (being confined solely to the admissibility of and/or leave for reliance to be placed upon the report and Affidavit of Ms H) and as follows:
a)Father’s Exhibit 1 (F1): A letter dated 10 July 2012 from the legal representatives for Ms Cooper to Ms H requesting the provision of a report.
b)Father’s Exhibit 2 (F2): A specific tagged portion of Ms H’s notes and being the initial “retainer agreement” signed by Ms Cooper and authorising Ms H to proceed with the provision of services to [Y] in November 2011. The terms of that document are of some relevance and are relied upon particularly to the extent that it includes the following provision:
The service we provide is confidential, and any information provided by you (or even your status as a client of our practice) will not be disclosed to other parties without your permission (see Information Consent form, attached). On rare occasions, however, your psychologist may be bound by law, and ethical requirements, to disclose confidential information about you to other parties, when that information involves:
a) Current abuse, or threat of abuse, of a child;
b) A risk of serious harm to you or to someone else;
c) Details of a serious offence under the Major Crimes Act;
d) Information (written or otherwise) requested by subpoena from a court of law.
The retainer is signed by Ms Cooper but not Mr Cooper. Further, a “Consent to Release/Obtain Information” form is signed by
Ms Cooper authorising the release of information to [Y]’s teacher, two doctors and to Mr Cooper.
c)Father’s Exhibit 3 (F3): An internal memo produced by the legal representatives for Ms Cooper and relating to further issues regarding preparation and provision of a report by Ms H.
d)Mother’s Exhibit 1 (M1): A letter from Ms Cooper’s solicitors advising of the issue of subpoena to [omitted] Psychology (and following such notice having been given and attested to in a request for access, an administrative determination was then made to permit access to that subpoena material, again, in accordance with the Federal Magistrates Court Rules).
It also transpires from the evidence led by the parties and with respect to this issue (by reference to the Affidavit material) that the father was made aware of the mother’s intention to approach Ms H for the provision of counselling and psychological services and that the father provided his consent to same. Such consent was provided upon conditions and being, on the father’s part, that he would be permitted the opportunity of attending a separate appointment or interview with Ms H (as also occurred with Ms Cooper) prior to any counselling of [Y] commencing. It would appear common ground that such appointment, in fact, occurred.
[Y] then commenced counselling and has continued to attend counselling appointments with Ms H to the present. Ms H deposes (paragraph 4.3 of her report) that [Y] has attended on “ten occasions over the period since 14 December 2012 [sic], mostly on a fortnightly to monthly basis”.
In February 2012 Mr Cooper withdrew from participation in the counselling process. This is addressed (and no controversy would appear to arise from this statement as thus contained) in paragraph 4.2 of Ms H’s report in the following terms:
Mr Cooper, while having agreed on 17th January 2012 to attend his next scheduled appointment to discuss [Y]’s counselling needs and treatment plan, in further detail (and to participate in same), failed to bring her to the planned appointment on 27th February 2012, and advised by telephone that he did not intend to bring her to any further appointments, citing a range of reasons including financial preferences (“I’d rather spend my money on her activities”), timetable clash (“[sport omitted] starts back today”), [Y]’s preferences (“I gave her a choice and [Y] said she’d rather go to [sport omitted]”). He also expressed an opinion that [Y] “is fine and does not need to come”. Mr Cooper has not been directly involved in [Y]’s treatment since that time, although it was made clear to him that his participation is welcome and he can re-join the process at any stage.
The family report, released as above, contains in paragraphs 49 to 51 thereof and under the heading of “Recommendations” the following:
49. That Ms Cooper and Mr Cooper have shared parental responsibility for the children.
50. That [X] live with Ms Cooper and spend time with Mr Cooper as per his wishes.
51. That the ‘live with’ and ‘spend time’ with arrangements for [Y] be subject to judicial determination.
As would be readily apparent from the above chronology the arrangements that were in place for the care of [X] and [Y] at the time of the family report interviews are not reflective of present reality for either of those children. Indeed the following is readily discernable:
a)The parties had, until approximately two weeks prior to the report interviews, lived separately and apart under the one roof and had done so for some eleven months;
b)At the date of the report interviews the children were living with Ms Cooper in the former matrimonial home and their time with Mr Cooper, whilst unclear from the material considered at the time of this determination, would appear, based on the family report if nothing else, to have either not commenced or to have been sporadic;
c)The day following the interviews an equal time arrangement came into effect in relation to [Y] and that arrangement has continued since that time and will continue until the final determination and conclusion of these proceedings (which have now been adjourned part heard to dates in September 2012). The adjournment of the proceedings on a part heard basis would suggest and reflect that the original hearing estimate provided and the original hearing time allocated to the matter was inadequate.
The objections to Ms H’s material
A broad range of bases have been identified in submissions put by Counsel for each of the parties with respect to the objection.
In making submissions, Counsel have not made clear or made specific reference to any case law in support of their positions although a number of specific provisions of the Act have been referred to and addressed, particularly those contained in Part II and Part VII Division 12A.
I had, prior to receiving the majority of submissions for Counsel, identified a number of specific authorities and articles which would be considered by me in dealing with and determining the issue subject of such controversy and these will be outlined and enumerated in these reasons.
Broadly, the areas of controversy and/or bases for each Counsel’s submission as to the acceptance or rejection of Ms H’s evidence can be characterised by the following questions:
(1)Is Ms H’s evidence caught (and thus excluded) by the provisions of Part II of the Family Law Act and, in particular, sections 10B to 10E inclusive?
(2)If the services provided by Ms H are not family counselling (and thus the inadmissibility provisions of s.10E do not apply) should the material still be excluded upon the same or analogous bases?
(3)Is Ms H’s evidence expert evidence and, if so, is leave required to produce that evidence?
(4)Should Ms H’s evidence (whether expert or otherwise) be excluded on the basis that it infringes the obligation of confidentiality required and/or offered by Ms H in her professional capacity and/or on a contractual basis having regard to her retainer?
(5)Should Ms H’s evidence be excluded as unfairly prejudicial or otherwise denying due process to Mr Cooper?
(6)Should the evidence be excluded on a Makita (Aust.) Pty Ltd v Sprowles(2001) NSWCA 305 basis?
(7)Should the evidence be excluded on the basis that the report provided by Ms H exceeds the brief, instructions or remit of her requested reportage?
(8)Should Ms H’s evidence be excluded as partisan?
(9)Should Ms H’s evidence (comprising not only the report but the notes produced on subpoena) be excluded on any of the above or following bases or are the notes admissible on the basis that they have been produced to the Court on subpoena and access to inspect granted without objection?
(10)Should the material be excluded on a public policy basis?
I propose to deal with and address each of the above questions individually.
Is the service provided by Ms H family counselling (and thus excluded by s.10E of the Family Law Act)?
I am satisfied that the services provided Ms H are not and could not be described as family counselling within the ambit of Part II Division 2 of the Family Law Act so as to attract the provisions of confidentiality and inadmissibility established by ss.10D and 10E.
The above is not intended to suggest that the services provided by
Ms H are not family counselling within the usual English usage of that term (or the term child and family counselling as used in the pre-2006 version of the Family Law Act). However, as is established by a number of authorities (see for instance Trapp & Vonne [2009] FMCAfam 497; Smirnov & Turova [2009] FMCAfam 1083; and Bauer & Steggall [2011] FMCAfam 728), for confidentiality and inadmissibility to be attracted pursuant to sections 10D and 10E one must establish that the process which has been engaged in or embarked upon is family counselling as defined within s.10B. For that to be so, the process engaged in or service provided must be provided by a family counsellor as defined in s.10C.
I have no difficulty in accepting that the services provided by Ms H would meet, in most respects, the definition of family counselling set out in s.10B. That section provides:
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.
Clearly that which is provided for [Y] is assistance in dealing with personal and interpersonal issues arising from the separation of her parents. However, those services, when provided by Ms H (with all due respect to her) are not provided by her as a “family counsellor” as defined in s.10C.
A significant difficulty arises with respect to the attraction of confidentiality to the provision of services as a consequence the definition of family counsellor as set out in s.10C. There are five categories of person who are defined as family counsellors. However, only one of the five categories is presently capable of satisfaction.
Whilst s.10C envisages that a person may be accredited as a family counsellor under accreditation rules (s.10C(1)(a)) no such rules exist. Similarly no person is authorised under section 38BD of the Family Law Act (s.10C(1)(c)), nor authorised under s.93D of the Federal Magistrates Court Act (s.10C(1)(d)) nor authorised by a Family Court of a State (s.10C(1)(e)) to act as a family counsellor.
Thus the only persons presently capable of meeting the definition of “family counsellor” (and thus attracting the benefit of confidentiality and inadmissibility) are those who are persons “…authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph”. Such a list is published and largely reflecting organisations both authorised and funded by the Commonwealth to provide family counselling services. Ms H, being employed as she is through a private practice, is not so authorised and thus is not capable of being described as a family counsellor pursuant to the definition.
In light of the above, the provisions of ss.10D and 10E cannot apply to exclude Ms H’s evidence.
If the services provided by Ms H are not family counselling (and thus the inadmissibility provisions of s.10E do not apply) should the material still be excluded upon the same or analogous bases?
I am not satisfied that just because the services provided by Ms H would otherwise meet the definition of family counselling as set out in s.10B that they could, would or should attract the benefit of confidentiality and inadmissibility pursuant to ss.10D and 10E by some analogy to those provisions.
Whilst there is perhaps a logical inconsistency that could be argued as to the admissibility of material based solely upon whether its provider meets the definition of a family counsellor as set out in s.10C, I am concerned that:
a)Such interpretation of the provisions is not open to the Court pursuant the Acts Interpretation Act1901;
b)Such interpretation as to the application of confidentiality and inadmissibility would be spurious and inappropriate as those provisions are tailored specifically to services provided by a family counsellor and in the nature of family counselling as defined in sections 10B and 10C.
Whilst this has the effect that services of identical nature provided by two different service providers, one of whom is employed within an organisation designated by the Minister and one who is not, are treated differently sections 10D and 10E apply clearly and precisely to those services delivered in accordance with the legislation and not otherwise.
I am satisfied that the coverage and protection provided by s.10D and s.10E (and as applied to family counselling as defined in ss.10B and 10C) is absolute. In this regard I have had reference to the Full Court’s numerous decisions regarding those provisions and their predecessors including Centacare Central Queensland and Dowling and G and K and Attorney-General of the Commonwealth [1998] FamCA 109; In the Marriage of Sampson (No.1) (1977) 26 FLR 135; In the Marriage of Marshall (1983) 9 FamLR 43; Re Wakely & Hanns; Director of Court Counselling (Intervener) (1993) 17 Fam LR 215; and Relationships Australia & Pasternak (1996) 20 Fam LR 604 (dealing with pre-2006 amendment formulations for confidentiality (s.19N)) as well as, as regards the post-2006 amendment formulations of the legislation, Relationships Australia (Qld) & M [2006] FamCA 1265 and Unitingcare-Unifam Counselling & Mediation & Harkiss and Anor (2011) 46 Fam LR 12.
Ideally all family counselling services might be treated on the same basis. However there is no basis, founded upon legislative interpretation and absent a consideration of public policy considerations (which I will deal with shortly), which would warrant such a position being arrived at in the context of this determination.
Is Ms H’s evidence expert evidence and, if so, is leave required to produce that evidence?
The determination as to whether the evidence proffered by Ms H is “expert evidence” has some significance.
Firstly, a finding that the evidence is expert would compel a consideration of the relevant rules made under both the Family Law Act and Federal Magistrates Court Act.
Secondly, the consideration of Ms H’s evidence as “expert evidence” would have a significant impact as regards the offering of her opinion and its admissibility under the provisions of the Evidence Act, both Commonwealth and New South Wales.
The Federal Magistrates Court and Family Court each promulgate their own Rules. The Family Court’s rules (published as the Family Law Rules 2004) have application within the Federal Magistrates Court notwithstanding that the Federal Magistrates Court promulgates its own rules (Federal Magistrates Court Rules 2001). However, Regulation 1.05 of the Federal Magistrates Court Rules provides as follows:
(1) It is intended that the practice and procedure of the Federal Magistrates Court be governed principally by these Rules.
(2) However, if in a particular case the Rules are insufficient or inappropriate, the Court may apply the Federal Court Rules or the Family Law Rules 2004 or the Family Law Rules 1984 , in whole or in part and modified or dispensed with, as necessary.
(3) Without limiting subrule (2):
(a) the provisions of the Family Law Rules set out in Part 1 of Schedule 3 apply, with necessary changes, to family law or child support proceedings; and
(b) the provisions of the Federal Court Rules set out in Part 2 of Schedule 3, apply, with necessary changes, to general federal law proceedings.
When dealing with expert evidence the Federal Magistrates Court provides its own rules. These are not only separate and distinct to those provided by the Family Court but vary in some significant aspects not the least of which is the lack of provision within the Federal Magistrates Court Rules, other than with the consent of the parties, to the appointment of a single expert.
The relevant provisions of the Federal Magistrates Court Rules 2001 are as follows:
REG 15.06A
Definition
In this Division:
"expert" , in relation to a question, means a person (other than a family and child counsellor or a welfare officer) who has specialised knowledge about matters relevant to the question based on that person's training, study or experience.
REG 15.07
Duty to Court and form of expert evidence
For an expert's duty to the Court and for the form of expert evidence, an expert witness should be guided by the Federal Court practice direction guidelines for expert witnesses.
Note While not intended to address all aspects of an expert's duties, the key points in the guidelines are:
* an expert witness has a duty to assist the Court on matters relevant to the expert's area of expertise
* an expert witness is not an advocate for a party
* the overriding duty of an expert witness is to the Court and not to the person retaining the expert
* if expert witnesses confer at the direction of the Court it would be improper for an expert to be given or to accept instructions not to reach agreement.
REG 15.12
Further expert evidence
If a court expert has made a report on a question, a party may adduce evidence of another expert on the question with the leave of the court.
The definition of “expert” contained within the Federal Magistrates Court Rules:
a)Uses terminology which, to some extent, is inconsistent with the present drafting of the Family Law Act in that it refers to a “family and child counsellor” as opposed to a “family counsellor”. This is perhaps explicable by reference to the pre-2006 amendment version of the Family Law Act and in particular s.19N which adopted the lengthier nomenclature;
b)The more expanded nomenclature of “family and child counsellor or a welfare officer” envisages a great scope to the type of expertise that may be available for the purpose of providing expert evidence in children’s proceedings and particularly by reference to ss.76 and 79 of the Evidence Act (both Commonwealth and New South Wales).
As no definition of “family and child counsellor or a welfare officer” is included within the dictionary of the Federal Magistrates Court Rules I am satisfied that a broad and general English usage interpretation should be adopted with respect thereto.
Particular issue arises in this case, and as submitted appropriately and with some force by Counsel for Mr Cooper, as to the fact that expert evidence has been provided to the Court in the form of a s.62G report and thus a “court expert” has made a report on a question or questions in dispute in the proceedings and thus Regulation 15.12 would allow the introduction of expert evidence by a party to the proceedings only with leave of the Court.
In the event that it was considered that the provisions of the Federal Magistrates Court Rules were inadequate or insufficient to deal with the present issues, the parties have also made submissions with regards the relevant provisions of the Family Law Rules 2004.
Regulation 15.41(1) of the Family Law Rules provides:
Application of Part 15.5
(1) This Part (other than rule 15.55) does not apply to any of the following:
(a) evidence from a medical practitioner or other person who has provided, or is providing, treatment for a party or child if the evidence relates only to any or all of the following:
(i) the results of an examination, investigation or observation made;
(ii) a description of any treatment carried out or recommended;
(iii) expressions of opinion limited to the reasons for carrying out or recommending treatment and
the consequences of the treatment, including a prognosis;
(b) evidence from an expert who has been retained for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence:
(i) about that expert's involvement with a party, child or subject matter of a case; and
(ii) describing the reasons for the expert's involvement and the results of that involvement;
(c) evidence from an expert who has been associated, involved or had contact with a party, child or subject matter of a case for a purpose other than the giving of advice or evidence, or the preparation of a report for a case or anticipated case, being evidence about that expert's association, involvement or contact with that party, child or subject matter;
(d) evidence from family consultant employed by a Family Court (including evidence from a person appointed under regulation 8 of the Regulations).
One issue that is raised in these proceedings and which is addressed below is the fact that the report provided by Ms H goes beyond that which is envisioned by Regulation 15.41.
The effect of Regulation 15.41 if that a medical practitioner or other person (generally referred to in practice as a “treator”) who provides a report or evidence is not bound by Rule 15.55 of the Family Law Rules dealing with the mandatory disclosure of an experts report.
Clearly Ms H’s report and particularly that which is set out in paragraph 9 thereof goes beyond that which is envisioned by Regulation 15.41(1) and being a reportage of past involvement, treatment and prognosis.
One is also guided, in any consideration of the Family Law Rules, by Regulation 15.42 which sets out the purpose of the part and being:
The purpose of this Part is:
(a) to ensure that parties obtain expert evidence only in relation to a significant issue in dispute;
(b) to restrict expert evidence to that which is necessary to resolve or determine a case;
(c) to ensure that, if practicable and without compromising the interests of justice, expert evidence is given on an issue by a single expert witness;
(d) to avoid unnecessary costs arising from the appointment of more than one expert witness; and
(e) to enable a party to apply for permission to tender a report or adduce evidence from an expert witness appointed by that party, if necessary in the interests of justice.
In dealing with each of the elements of Regulation 14.42 I am satisfied that:
a)The evidence given by Ms H is with respect to and goes to a significant issue in dispute.
b)
Whilst it is intended by the rules to restrict the expert evidence that is available to resolve or determine the case, I am satisfied that further evidence beyond that of the family report writer (again without intending criticism or disrespect to its author
Ms B) is required. This particularly arises in the context that the report interviews and observations conducted had, in fact, occurred the very day prior to the significant change which was brought to the arrangements for the children’s care and the circumstances for this family by the interim hearing and subsequent Orders made 7 October 2011.
c)Ms B is not in a position to give expert evidence which is current or which speaks to, addresses or is reflective of the judiciable issues as they present at hearing (in July 2012) in light of the fact she has not engaged with nor been involved with this family since the day prior to the present circumstances coming into being.
d)I am not satisfied that any additional cost arises with respect to the conduct of the proceedings by the introduction of the evidence of Ms H.
e)I am satisfied that it is in the interests of justice and particularly the Court’s obligation to treat [Y]’s best interests as the paramount consideration (s.60CA) requires that the most current evidence, assessment and observation of [Y] and her present circumstances is before the Court.
Overall I am satisfied, however, that:
a)The Federal Magistrates Court Rules make more than adequate provision for any determination of the evidence that is and should be available for the hearing of these proceedings of an expert nature and thus, by reference to Regulation 1.05, I need not have specific consideration of the Family Law Rules.
b)Lest I am wrong with respect to the above, I am satisfied that the regime provided by Part 15 of the Family Law Rules is intended to deal primarily with (and as is made clear by Regulation 15.42(d)) the commissioning of single expert evidence wherever possible. It is to be noted, as is so noted above, that the Federal Magistrates Court Rules do not make provision for single experts other than by consent and thus I am satisfied that even to the extent that Part 15 of the Family Law Rules is suggested to apply that:
i)The Federal Magistrates Court Rules would prevail and would allow each of the parties to produce their own expert evidence;
ii)The evidence of Ms H is by and large the evidence of a “treator” and save to the extent that she has exceeded that which is sought from her (by the inclusion of paragraph 9) that her evidence would not be the subject of Part 15 of the Family Law Rules. I am not satisfied that the inclusion of such opinion changes the overall nature of her evidence as that of a treating counsellor nor that the inclusion of opinion evidence, by and of itself, excludes or should exclude the totality of her evidence; and
iii)The report that has been prepared for the Court pursuant to s.62G is not, of itself, that which is envisioned by Part 15 of the Family Law Rules and being a single expert report but rather a report commissioned pursuant to Part VII of the Family Law Act and thus not the subject of nor affected by the Rules.
Clearly Ms H is not, by reference to the Family Law Rules, a single expert witness (as envisioned by Regulation 15.45). Thus leave would not be required, pursuant to Regulation 15.49, to adduce evidence of another expert contrary to the report or to comment upon the evidence of the single expert (what is usually referred to as “an adversarial expert”). I am satisfied that Ms H does not thus fall within that general descriptor.
Overall and in summary I am satisfied by reference to both the Federal Magistrates Court Rules and the Family Law Rules that Ms H is an expert but not a single expert. To the extent that Ms H’s evidence is expert evidence (and using that term in its common usage rather than any more specific context) I am satisfied that:
a)No leave is required for the production or introduction of her evidence within the context envisioned by the Family Law Rules as a “adversarial witness”;
b)No leave is required to adduce her evidence in the Applicant’s case (as Ms H would not be a “expert” within the definition of Regulation 15.06A);
c)Lest I am wrong with respect to any of the above, leave can and would be granted for the admission of Ms H’s evidence in any event being the best available evidence with respect to the present circumstances of [Y].
By reference to the relevant provisions of the Evidence Act I am satisfied that the opinion of Ms H would be admissible (to the extent that her report contains opinion and beyond her mere reportage of observation) and having regard to s.79 of the Evidence Act 1995 (Cth). To that extent it is clear that Ms H’s evidence would comprise, as set out in that section:
Opinion based on specialised knowledge
(1) If a person has specialised knowledge based on the person's training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
(2) To avoid doubt, and without limiting subsection (1):
(a) a reference in that subsection to specialised knowledge includes a reference to specialised knowledge of child development and child behaviour (including specialised knowledge of the impact of sexual abuse on children and their development and behaviour during and following the abuse); and
(b) a reference in that subsection to an opinion of a person includes, if the person has specialised knowledge of the kind referred to in paragraph (a), a reference to an opinion relating to either or both of the following:
(i) the development and behaviour of children generally;
(ii) the development and behaviour of children who have been victims of sexual offences, or offences similar to sexual offences.
The provisions of the New South Wales Evidence Act 1995 are identical.
I am satisfied, for the purpose of ss.76 and 79 of the Evidence Act 1995 (Cth) and (NSW) that Ms H is an expert and that she is a person with specialised knowledge based on her training, study and experience and thus in a position to offer the opinions that she has advanced including opinions as to the “development and behaviour of children” as referred to in s.79(2)(b)(i).
Should Ms H’s evidence (whether expert or otherwise) be excluded on the basis that it infringes the obligation of confidentiality required and/or offered by Ms H in her professional capacity and/or on a contractual basis having regard to her retainer?
In Mr Cooper’s case it is submitted that Ms H’s evidence would be excluded on contractual and confidentiality bases. I propose to deal with this aspect of the objection separate and distinct to the broader public policy objection which I will deal with lastly.
I have not been taken to nor have I been able to ascertain any authority which would suggest a basis for the exclusion of Ms H’s evidence by reference to express “holding out” of confidentiality or a contractual estoppel arising from the confidentiality agreement between Ms H and the parties.
In seeking to address the issues between these parties I have sought to canvass a broad range of case law from western common law nations. This has included a consideration (to the extent to which it has not already become apparent as will be set out hereafter) of authorities of both Australia, United States, United Kingdom and Canada.
The only authority directly touching upon this basis of objection raised by Mr Cooper which I have been able to locate is a decision of the Ontario Superior Court in Geremia v Harb 2009 CanLII 29654. In this case, before His Honour Justice Quinn, an Applicant had brought a motion to strike out parts of a report sought to be introduced into evidence by the Respondent on the dual bases that the report contained matters beyond the expert’s retainer and in breach of confidentiality.
After considering specific portions of various provisions established by Canadian legislation (which clearly are not binding in this Court nor apposite to the issue in dispute) His Honour allowed the motion in part and dismissed other portions of the motion (but without prejudice and on the basis that such applications were considered premature).
The Applicant had asserted that he had provided certain information to the witness in confidence. His Honour concluded:
If information was divulged to [the report writer] with the caveat of confidentiality it was improper of her to include it in her report (absent urgent circumstances imperilling the wellbeing of the child). [The report writer] either should have made it known to the father that nothing he said would be “off the record” or should have honoured the confidence. In the absence of the former, fairness dictates enforcement of the latter. I am not at all suggesting that there is counsellor-client privilege. But where a client sets up ground rules to a counselling session a counsellor should either accept them or refuse the retainer.
The evidence in this case would suggest, in accordance with that tendered into evidence in Mr Cooper’s case, that the counselling process between [Y] and Ms H was instigated by Ms Cooper.
Ms Cooper has clearly (it being the document tendered into evidence exhibit F2) been provided with a written description of the confidentiality that will attach to the process. However, in the circumstance of this case there is no evidence to suggest that
Mr Cooper has ever had an identical “holding out” or been provided with, signed or sighted an identical document to that tendered into evidence as having been presented to and executed by Ms Cooper.
In those circumstances I am not satisfied that His Honour’s decision (which clearly is not binding upon this Court in any event) can or should be followed by me. That is not to suggest that I cavil with His Honour’s reasoning and, indeed, I accept it. However, there is not evidence to suggest that confidentiality was established between
Mr Cooper and Ms H.
To the extent to which confidentiality was established as between Ms H and Ms Cooper I am satisfied that it is within Ms Cooper’s power to waive the right offered to her and as embodied within the retainer agreement. It is her confidentiality and thus, analogous to legal professional privilege, her right and power to waive it.
To the extent that there is also a waiver of confidentiality as regards [Y] I am conscious that these parents have equal shared parental responsibility. However, I am satisfied that:
a)Mr Cooper provided his consent to Ms Cooper’s engagement of [Y] in counselling (and the continuation of same) but did not instigate the process;
b)To the extent that there would be an obligation upon these parents, as a consequence of their having equal shared parental responsibility, to consult and agree regarding such process (if the counselling were accepted as being relevant to and part of a major issues decision as to [Y]’s “health” (see ss.4 and 65DAC FLA)), the consent to release of information and the waiver of any asserted privilege is a matter for Ms Cooper as the parent contracting with Ms H.
Lest I am wrong with respect to the above I would be satisfied, in any event and by reference to the public policy issue that I will deal with in the final portion of these reasons, that the evidence would and should be admitted.
Should Ms H’s evidence be excluded as unfairly prejudicial or otherwise denying due process to Mr Cooper?
As would be apparent from the above chronology the evidence that is sought to be adduced by Ms H is served late.
A direction had been made that both parties file and serve all Affidavit material to be relied upon by them by 31 May 2012.
The report of Ms H is dated 12 July 2012 (being two working days prior to the commencement of trial) and the Affidavit is affirmed and filed (and the Court is advised served) the working day prior to the commencement of the trial.
A significant issue regarding due process arises from the lateness of service if nothing else.
It is also submitted in Mr Cooper’s case that he is not in a position to respond to or test the evidence of Ms H particularly as:
a)It comprises opinion evidence (as well as direct observations) which cannot be tested;
b)
The opinions expressed by Ms H are, at least in part, informed by and based upon (although to the extent that this may be so it is unclear from the text of the report) the consideration of third party materials provided to Ms H by Ms Cooper and which, again, cannot be tested. This is particularly the case as regards a volume of typed materials which are produced by two school teachers from [Y]’s school and which are annexed to Ms Cooper's Affidavit material (and are the subject of separate objection). This material or portions thereof have been provided by
Ms Cooper to Ms H.
As regards late service, the circumstances of the case, perhaps, address or ameliorate concerns which would otherwise arise.
These proceedings were listed for a two day trial to commence 16 July 2012. The trial, itself, did not in fact commence until 17 July 2012 as the first day of trial was consumed in argument and submissions (appropriately so) regarding the significant and important issues the subject of this determination. The matter has, accordingly, been adjourned part heard for a further two days of trial and some months hence.
The Court is advised, and the Orders that I propose to make allowing the material to be relied upon will be subject to a condition that, Ms H will be available for cross examination. On that basis, combined with the adjournment of the proceedings that is now necessitated, I am satisfied that Mr Cooper will be in a position to properly test and be afforded due process with respect to Ms H’s evidence.
As regards the other elements of the submissions by Counsel for
Mr Cooper in relation to due process (and the inability to test certain portions of the evidence relied upon Ms H in formulating her opinions) I observe that:
a)It is not readily apparent from Ms H’s report what weight, if any, she has placed upon the materials that have been provided to her by Ms Cooper in the nature of the school teacher’s reports. They are matters that can, no doubt, be explored with Ms H during cross examination;
b)
To the extent that such materials have been relied upon, a Makita (Aust.) Pty Ltd v Sprowles issue will arise for Ms Cooper in the conduct of her case generally and specifically with respect to
Ms H’s evidence, in the event that concessions as to the accuracy of that contained within the notes provided are not forthcoming from Mr Cooper or the matters set out therein are not independently established. Indeed, the Court may be invited to draw a Jones v Dunkel (1959) 101 CLR 298 inference with respect to those issues;
c)To the extent that each of the above impacts upon the opinion expressed and offered by Ms H then I am satisfied that these would be an issue of the weight to be attached to such opinion (or its acceptance at all) rather than an issue as to admissibility.
Further with respect to issues of due process I am particularly guided by the erudite and comprehensive consideration of same undertaken by the Full Bench of the Federal Court in Minister for Immigration and Citizenship v Maman [2012] FCAFC 13. Their Honours, commencing at paragraph 30, consider, in the context of expert evidence, relevant principles of procedural fairness (otherwise initially referred to in the English legal process and as continues to be referred to in North American jurisprudence as “due process”). Their Honours therein espouse a number of principles with respect to procedural fairness including:
… there are no universal rules as to the content of the rules of natural justice applicable to all factual or statutory situations: : Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation[1963] HCA 41 (paragraph 31).
…a further general principle is that procedural fairness generally requires the disclosure of relevant adverse information that is “credible, relevant and significant”: Kioa v West [1985] HCA 81 (paragraph 32).
there are limitations upon the duty to disclose information which is “credible, relevant and significant” (paragraph 33).
But the mere fact that a document may contain confidential information does not dictate that it not be disclosed, either in whole or in part. And the opposition of an opposing party to the disclosure of personal but confidential information does not of itself operate so as to preclude disclosure (cf. Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72 (paragraph 34).
Even where there may be substantial reasons in favour of preserving the confidentiality of information, the rules of procedural fairness may require disclosure of adverse information… Canterbury Building Society Ltd v Baker [1979] 2 NSWLR 265 (paragraph 35).
There remain, however, no universal rules as to whether the confidential information itself need be disclosed in its entirety or whether some lesser disclosure may suffice: Ansell v Wells [1982] FCA 186 (paragraph 36).
..an adequate “opportunity” to be heard may be satisfied in some cases if the gist of any adverse information is disclosed without the entire text or document in which that information is contained necessarily also being disclosed…Plaintiff M61/2010E v Commonwealth [2010] HCA 41(paragraph 37).
…if information is “credible, relevant and significant”, it may not be a sufficient compliance with the requirement of procedural fairness for a decision-maker to assert that he has placed such information to one side or given it no weight: Applicant VEAL of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs [2005] HCA 72… and Kioa v West [1985] HCA 81 (paragraph 43).
.. a breach of the requirements of procedural fairness may deny effectiveness to a step in a decision-making process (Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11) (paragraph 44).
To the extent that material is provided by Mr Cooper to Ms H and is then reported or relied upon by her in expressing any opinion in her report I am satisfied that due process or procedural fairness is afforded to Mr Cooper. To the extent that information is derived from other sources I am satisfied, subject to issues of weight which would then appropriately be the subject of submission or further attack on the veracity of Ms H’s evidence, that Mr Cooper is afforded due process.
Should the evidence be excluded on a Makita (Aust.) Pty Ltd v Sprowles (2001) NSWCA 305 basis?
During the course of submissions I had raised with Counsel for each of the parties a number of issues relating to Makita (Aust.) Pty Ltd v Sprowles and particularly how same may apply to Ms H’s report.
The above issues, perhaps, impact upon and are addressed in the above considerations. However, lest there be any suggestion that such matters have not been fully addressed and considered I am conscious, particularly to the extent that third party information has been relied upon and the authors of those documents are not to attend for cross examination, that a Makita (Aust.) Pty Ltd v Sprowles issue may well arise both as to those third party documents and, to the extent that
Ms H has relied upon them, her evidence.However, as I would hope is made clear above, I am satisfied that such issues as arise (unless and until they can be shown to be of such magnitude that any opinion thus offered could not be suggested to have been formulated other than upon material that is entirely untestable) are matters of weight rather than admissibility.
Further, and as I have opined above, Ms H’s report does not make clear the reliance (if any) she has placed upon such third party materials as have been provided to her. Thus, such matters would need to be the subject of cross examination and, subject to that which is revealed thereby, some further challenge to the weight of the report might become apparent and/or some further attack (in the event that vast or substantial significance was placed upon such material) might be launched as to the admissibility of the material and the striking out of evidence thus given.
Should the evidence be excluded on the basis that the report provided by Ms H exceeds the brief, instructions or remit of her requested reportage?
The majority of Ms H’s report (some ten pages and divided up into ten numbered paragraphs) seeks to give direct evidence of direct observation and opinion or interpretation with respect to same. However, two portions of the report (paragraphs 7 and 9 headed respectively “Diagnosis” and “Opinion and Recommendations”) would appear to go beyond the remit of the instructions provided to Ms H in the original request for the report (Father’s Exhibit 1).
Challenge is raised to the report in its totality based upon the inclusion of these materials.
A further attack is made upon the report, and in particular the above paragraphs, as same would seek to comment upon or go beyond the family report prepared by Ms B. It is unclear, and remains unclear, whether a copy of the family report has been given to Ms H during the course of her consultations with [Y]. However, on balance, it appears likely that this has occurred.
As I have indicated above, the only authority that has become apparent, from my own research and enquiries, regarding the above submission arises from an authority of the Ontario Superior Court. Whilst I have received great assistance from that authority, I am satisfied that the determinations made therein upon this issue are distinguished from the facts and circumstances of this case. Further, I am satisfied that the author of the report is permitted to offer opinion above and beyond that which is sought to be elicited from her by instructors.
I had raised with Counsel for both parties the proposition that the subject paragraphs might be redacted and the balance of the report admitted. Each Counsel was against any such proposition although there were no further or more specific submissions put with respect to such issue although Counsel for Ms Cooper had submitted that the report should be included in its totality without portions thereof being struck out or redacted. I am satisfied that this is so.
Should Ms H’s evidence be excluded as partisan?
Submissions are put with some force and appropriateness by Counsel for Mr Cooper that the report is, in the context of its creation and the engagement with the counselling service having been instigated by
Ms Cooper albeit provided to and for the benefit of [Y], to some extent partisan and thus should be excluded.
In having regard to this consideration I have had particular reference to and guidance from the Full Court’s decision in Re W & W (Abuse allegations; Expert evidence) [2001] FAMCA 216.
Their Honours, in the specific circumstances of that case and, in particular, at paragraphs 157 to 165 discussed a number of principles relating to expert evidence. This has included an extensive and comprehensive review of decisions such as Lord Arbinger v Ashton (1873) 17 LR Eq 358 and the Court’s comments therein:
Undoubtedly there is a natural bias to do something serviceable for those who employ you and adequately remunerate you. It is very natural, and it is so effectual that we constantly see persons, instead of considering themselves as witnesses, rather consider themselves as the paid agents of the person who employs them.
I am not satisfied that the above has application to Ms H’s report. Certainly whilst Ms H, particularly in paragraphs 7 and 9 of her report, has offered her own opinions as to the future arrangements that would best meet [Y]’s needs, I am satisfied that these, prima facie and subject to further challenge in cross examination, are based upon a consideration by her of the material that has been available to her and most importantly her ten or so sessions with [Y]. It has also included, at least until February 2012, involvement by and engagement with both Mr Cooper and Ms Cooper.
In Re W & W, their Honours reviewed a number of academic pieces regarding expert evidence and as set out therein together with further case law. However, I am satisfied that Ms H’s evidence is distinguished from the critical comments made by their Honours in that decision particularly in that:
a)Ms H has had a relatively extensive engagement with [Y] of a therapeutic nature. In Re W & W one of the great criticisms of the Full Court had been that the expert report in question had not involved any direct consultation with the parties or their child and had sought to offer comment, opinion and diagnosis with respect to persons thus not met.
b)Ms H’s opinions, again prima facie and subject to further challenge in cross examination, are reported and the opinions that she has expressed appear to be by reference to diagnostic tools which she herself has administered and is based upon (subject to the caveat of third party information addressed above) her own direct observations and experience.
c)Ms H’s evidence would appear to be within the context and parameters of her therapeutic engagement and within the context of her specialist training, qualifications and experience (as referred to s.79 of the Evidence Act).
Thus I am not satisfied that Ms H’s evidence can or should, at this point, be excluded based purely on the fact that it is filed in the case of Ms Cooper and expresses opinions favourable to Ms Cooper’s case. Further, I am not satisfied that I could appropriately find, at this point and based on the evidence presently available and prior to Ms H’s cross examination, that she is or has become so partisan in the proceeding so that either:
a)Her evidence should be disregarded or excluded in its entirety on that basis; or
b)Her evidence is so flawed or affected by such factors as to be unreliable or so lacking in probative value or weight as to be irrelevant (and thus excluded by either sections 56, 135 or 136 of the Evidence Act 1995 (Cth)).
Should Ms H’s evidence (comprising not only the report but the notes produced on subpoena) be excluded on any of the above or following basis or are the notes admissible on the basis that they have been produced to the Court on subpoena and access to inspect granted without objection?
Counsel for Mr Cooper has asserted that not only Ms H’s report and Affidavit should be excluded from evidence but also that any material produced in response to the subpoena addressed to Ms H should also be excluded.
Leave has already been granted to the legal representatives of the parties to inspect material produced on subpoena by Ms H.
I am not satisfied that the subpoena addressed to Ms H is an abuse of process. In the event that the material thus produced could or would properly fall within the Part II Division 2 definition of “family counselling” then any subpoena for the production of that material (by reference to the Full Court authorities referred to above) could and must be an abuse of process and thus struck out with costs.
It was submitted by Counsel for Ms Cooper that as material had already been produced on subpoena and no objection had been raised to its inspection that this constituted a waiver, by Mr Cooper, of any claim for privilege with respect to those documents.
I am not satisfied that the absence of objection to inspection (particularly in the context of the administrative process, not involving judicial scrutiny, that applies for the release of material produced on subpoena under the provisions of the Federal Magistrates Court Rules) could or would properly amount to a waiver of privilege (at least as regards material produced by Ms H which related to confidential discussions or purportedly confidential discussions between Ms H and Mr Cooper).
The Superior Court of Canada in M. (A.) v. Ryan [1997] 1 S.C.R. 157 had dealt with such an issue. In that case argument was mounted as to the exclusion of certain evidence in relation to psychiatric counselling records of a plaintiff which had been subpoenaed in civil proceedings for damages relating to alleged sexual assaults upon the plaintiff by the defendant.
The Court, in those circumstances, had received argument that a waiver of any privilege had occurred through the failure of the plaintiff or her attorney’s to object to inspection or assert privilege in a lower Court. The majority of the Court did not accept the argument that the failure of the plaintiff to assert privilege at first instance had amounted to a waiver of such privilege. Whilst that authority is not binding I find the rationale of the judgement helpful and persuasive.
By analogy to same and within the same context I am satisfied that the failure to assert an objection to inspection of material produced in response to the subpoena issued by Ms Cooper’s attorney’s amounted to a “waiver” of any such objection or a waiver to any objection to evidence being admitted in the proceedings from the material, in fact, produced by Ms H.
I am satisfied, in the context of these proceedings, that a waiver of such right of objection to the admission of material is something that must be actively considered and construed within the specific circumstance of such application. A failure to object to leave being granted to inspect material (although I accept such objection could have been raised) is not a positive action on Mr Cooper’s part. Thus the failure to take a step is not tantamount to and does not constitute the active taking of the serious and significant step of consenting to either release of his confidential information or the tendering into evidence and acceptance as a business record pursuant to section 69 of the Evidence Act, of the material thus produced.
Should the material be excluded on public policy bases?
In addressing this issue I have had regard to a number of authorities including:
a)Bauer & Steggall [2011] FMCAfam 728 (paragraphs 26 to 61 thereof);
b)Feinster & Feinster and Anor [2006] FamCA 232;
c)Benson & Hughes (1994) FLC 92-483;
d)Sankey & Whitlam (1978) 142 CLR 1;
e)Re Bell; Ex parte Lees (1980) 146 CLR 141;
f)Hutchings & Clarke (1993) FLC 92-373;
g)Duits & Duits 2006 CanLII 14407;
h)Mellish v Martinson 1993 CanLII 1825;
i)R v JT 2005 CanLII 51120; and
j)R v SLR 1991 CanLII 4532.
In addition to the above, and as these proceedings are dealt with in New South Wales, I have also had regard to the provisions of the NSW Evidence Act (which, by virtue, of the provisions of the Judiciary Act apply to this Court sitting in New South Wales).
The Australian authorities considered would suggest that no public interest privilege could be established in this case.
In Benson & Hughes His Honour Chisholm J undertook a most thorough and useful discussion of the topic. A number of passages from Honours reasons are of particular interest and assistance. His Honour first commenced by a consideration of the special nature of parenting proceedings and the specific evidential considerations that apply and referred to the High Court’s decision in Re Bell; Ex parte Lees:
…parents are not the only persons whose interests are to be considered as might be the case in property negotiations: "If the welfare of the child is the subject of the enquiry, there comes a point when it must override any privilege which either parent may possess as was the case in Re Bell; Ex parte Lees (1980) 146 CLR 141, per Gibbs J at 146.
His Honour also considered the Full Court’s decision in Hutchings & Clarke (1993) FLC 92-373 dealing with the admission of settlement negotiations (prior to the legislative privilege created by s.131 of the Evidence Act) in parenting proceedings and included the following:
the court should be reluctant to override the privilege of parties engaged in such discussions, but as stated earlier, protection of the welfare of the child is another public interest recognised [by the Family Law Act]...and declared to be the consideration…This means that the court must give priority to considerations of the welfare of the child in a situation where non-disclosure of the relevant evidence "might have the result that the child remained in conditions detrimental to his or her welfare" [emphasis added] in the words of Gibbs J cited earlier. This balancing in interests can only be performed on a case by case basis
Chisholm J also stated:
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).
However, there are recognised exceptions to this principle. One is legal professional privilege. There are also other reasons of public policy which require the exclusion of otherwise admissible evidence. A well-known example is D v National Society for the Prevention of Cruelty to Children [1978] AC 171, in which the House of Lords held that evidence could not be given of confidential information disclosing the identity of people who reported suspected child abuse to a child protection organisation, whose effectiveness depended on keeping secret the identity of those who made complaints of suspected child abuse. In that case Lord Hailsham said at 230 that "the categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop". Although the confidential nature of the communication is not a separate ground of privilege, it is an important factor in considering the claim of privilege: see per Lord Cross in Alfred Crompton Amusement Machines Ltd v Commissioner of Customs and Excise (No 2) [1974] AC 405, 433.
His Honour Justice Watts, in Feinster, conducted a thorough and erudite review of public interest decision (including Benson & Hughes above) and the following passages are illuminating:
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.
Australian courts have confirmed that the public interest immunity doctrine requires resolution of the tension between preventing the disclosure of material which may harm national or public interest and ensuring that justice is not frustrated in individual cases by the withholding of documents
Clearly, on that basis, public interest immunity would not and could not be attracted to the protection of otherwise confidential (or understood to be confidential) communications between a patient and a therapist or, as in this case, the child of the parties and a therapist (at least not in the absence of statutory exclusion as applies with ss.10D and 10E of the Family Law Act).
His Honour then turned to consider recognised categories of public interest immunity (referring to the matter of Sankey v Whitlam (1978) 142 CLR 1):
Sankey v Whitlam Gibbs ACJ at 39 affirmed that documents subject to a claim of public interest immunity may be divided into two categories, based on either the contents of an individual document or because they belong to a class of documents. A ‘contents’ claim is concerned about whether the release of particular information will be contrary to the public interest whilst a ‘class’ claim is premised on grounds that ‘vital organisations cannot operate if certain classes of communication are divulged, irrespective of the information contained in those communications’.[1] Importantly the balancing exercise must be performed for documents in both categories.
Claims for public interest immunity can also be broadly classified into those concerned with national security and those relating to some other national interest, though more recent decisions such as R v Young [1999] NSWCCA 166 suggest a preference to narrow claims to situations involving a governmental function. However 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 exception: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 (NSPCC) at 230.
[1] A. Ligertwood, Australian Evidence (4th Ed), 2004, LexisNexis Butterworths, Sydney, at 385.
His Honour also referred to and had reliance upon the decision of Royal Women’s Hospital v Medical Practitioners Board [2005] VSC 225 (Gillard J) wherein Justice Gillard held that “…the public interest in a proper investigation using all the evidence outweighed the public interest in the Hospital maintaining a confidential relationship with its patients”.
Justice Watts, within the specific context of the case before him, excluded material. However, His Honour was clear in stating:
the ordinary psychiatrist / patient relationship does not attract public interest immunity
Section 126B of the Evidence Act (NSW) provides for the exclusion of evidence of protected confidences and in the following terms:
(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:
(a) a protected confidence, or
(b) the contents of a document recording a protected confidence, or
(c) protected identity information.
(2) The court may give such a direction:
(a) on its own initiative, or
(b) on the application of the protected confider or confidant concerned (whether or not either is a party).
(3) The court must give such a direction if it is satisfied that:
(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and
(b) the nature and extent of the harm outweighs the desirability of the evidence being given.
(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:
(a) the probative value of the evidence in the proceeding,
(b) the importance of the evidence in the proceeding,
(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,
(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,
(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,
(g) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,
(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person,
(i) the public interest in preserving the confidentiality of protected confidences,
(j) the public interest in preserving the confidentiality of protected identity information.
(5) The court must state its reasons for giving or refusing to give a direction under this section.
No analogous provision is contained within the Commonwealth Evidence Act (it being limited to legal professional privilege, journalist privilege, religious confession privilege and privilege from self-incrimination).
Section 126B of the NSW Evidence Act bares some passing resemblance to the Canadian authorities set out above (which in turn consider authorities from the House of Lords and United States Supreme Court) regarding what is generally referred to as a “public interest immunity”.
The concept of confidentiality in physician patient relationships is not new. In an excellent article “The Psychotherapist-Patient Privilege In The Family Court: An Exemplar Of Disharmony Between Social Policy Goals, Professional Ethics, And The Current State Of The Law”, by Deborah Paruch, published in Eliminating Unintended Bias National Association of Children’s Counsel Manual 2011, Ms Paruch discussed the development of such privilege and in the following terms:
Some two hundred years after the attorney-client privilege was first recognized in English common law, the English courts were called upon to address the physician-patient privilege in the 1776 bigamy trial of Elizabeth, the Duchess of Kingston.18 During her trial, the Duchess’s physician was called to the stand and asked whether the Duchess had told him of a prior marriage. The court refused to recognize a physician-patient privilege, stating:
If a surgeon was voluntarily to reveal these secrets, to be sure he would be guilty of a breach of honour, and of great indiscretion; but, to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatsoever
This decision is viewed as a critical turning point in the law of privilege because it was at this point that courts began to apply a utilitarian test to privileges, where the need for the evidence replaced ethics as the standard for recognition of privileges.
In the utilitarian approach, privileges are viewed as obstructions to the truth-finding process and as fostering a disregard for the fundamental principle that “the public . . . has a right to every man’s evidence.” Dean Wigmore identified four requirements necessary for the recognition of a privilege: (1) the communications must originate in a confidence that they will not be disclosed; (2) confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties; (3) the relationship must be one that, in the opinion of the community, ought to be sedulously fostered; and (4) the injury to the relationship caused by the disclosure of the communications must be greater than the benefit gained for the correct disposal of litigation.22 The U.S. Supreme Court has adopted this approach to the recognition of privileges, stating that privileges should be utilized “‘only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth. (quoting Elkins v. United States, 364 U.S. 206, 234 (1960))
Each of the above Canadian authorities refers to and discusses and applies, within the Canadian experience, what are generally referred to as the “Wigmore criteria”. These, in turn, derive from a decision of the Superior Court of Canada in R v Gruenke (1991) CanLII 40. These principles are set out succinctly in paragraph 21 of the Superior Court of Justice decision in Duits in the following terms:
In a “case by case” privilege there is a prima facie assumption that the communications are not privileged and are therefore admissible. The four criteria are as follows:
a. The communications must originate in a confidence that they will not be disclosed...
b. The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
c. the relation must be one which in the opinion of the community ought to be sedulously fostered.
d. the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
In Duits the Superior Court also opined (paragraph 24):
The Supreme Court has effectively ruled that privilege should not be a bar to justice.
The above is given some meaning and explanation within the context of that decision by the Supreme Court of British Colombia’s decision in Mellish v Martinson. After repeating the Wigmore test (referred to above) and canvassing a number of authorities, Master Joyce also reflected upon the importance of a consideration of the relevance of evidence that would otherwise be admitted as an overriding consideration of the application of all other tests and criteria.
In R v SLR, Justice Gruchy considered an extensive list of authorities applying the same tests and circumstances in which same would arise (noting that such claims for privileges, consistent with Australian legislation in 1991, were not codified but remained part of the common law). This involved a consideration of the confidential relationship between:
a)a journalist and his source (AG v Mulholland; AG V Foster [1963] 2 QB 477; (1963) 1 All ER 767);
b)a doctor and patient (R v Pain 1 WLR 67);
c)a priest and penitent (Sykes v DPP [1962] AC 528; Cook v Carol (1945) 1 R 515);
d)probation officer and client (McTaggert v McTaggert [1948] P 94);
e)a clergyman and parishioner (Henly v Henly [1955] P 202);
f)marriage counsellor and parties (G v G [1964] 1 OR 361).
Their Honours also went on to consider the specific application of the Wigmore test in a number of other circumstances before turning to the House of Lords decision in D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589 and quoting the following:
The fact that information is being communicated by one person to another in person, however, is not of itself a sufficient ground for protecting from disclosure in a Court of law the nature of the information or the identity of the informant if either of these matters would assist the Court to ascertain facts which are relevant to an issue which it is adjudicating (Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioner (No 2)). The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting the information or the identity of the informant from disclosure in a Court of law.
In R v JT, His Honour Senior Justice McCartney, again after an assessment and summation of the Wigmore principles, stated the following:
Thus in this particular case the critical question is found in the fourth part of the Wigmore test ie whether the interests served by protecting the documents from disclosure outweigh the interests of getting at the truth and disposing correctly of the litigation…The vital interest of society in protecting children from abuse must, in my view, be superior to the encouragement of patients to seek therapy from psychiatrists with the assurance that their confidential communications will be protected.
Whilst clearly there is no allegation of abuse raised in these proceedings (and thankfully so) there is some analogy to the circumstances described above. This is perhaps the crux of the matter in this circumstance.
In addition to the above I note and take some comfort from the comments of the Ontario Superior Court in R v RJS 45 CR (3rd) 161 which, again, considered the exclusion of evidence on the basis of public policy and which had considered the need to protect the children from abuses against the need to encourage confidentiality in family counselling. The Appeal Court, on that occasion, had stated:
However, in balancing benefit against injury the search for truth in the criminal process outweighs the need for family counselling at least in cases of suspected child abuse. The vital interests of society in protecting children from abuse must be superior to the encouragement of patients to seek therapy from psychiatrists with the assurance that their confidential communications will be protected.
Whilst I do not intend to suggest that these proceedings involve either a criminal determination or any issue or suggestion of abused, I do note the identification of the Appeal Court in this instance of the balance which is to be struck. One must balance the need for the best available evidence to be before the Court and the need for the parties to be afforded due process in thus knowing and accurately identifying the evidence that is to be relied upon and which they are to address against the desirability of allowing a person (in this case a child) from pursuing, obtaining and receiving therapeutic support and benefit through privileged and confidential counselling services.
In addition to the four elements of the Wigmore test to which I have had reference (which while non-binding I am satisfied are a useful checklist by which to address issues of public policy exclusion of evidence) I would add a fifth element being:
e. Whether there are other means by which the evidence can be obtained and made available which would be preferable to admission of evidence that the public interest might otherwise suggest the exclusion of.
In these proceedings (and I note that it is an issue specific to this determination and is not intended to suggest, in any fashion, that a like determination would be made with respect to other facts and circumstances in any other case) I am satisfied that the evidence cannot reasonably be obtained or obtained expeditiously by any other means or, to the extent that it could be obtained, that this would occasion unnecessary delay, cost and inconvenience which would obviate against those means being utilised when the alternate means (being to admit this evidence notwithstanding the public policy issues raised) is available.
I have had particular reference to the determinations of the High Court regarding the benefit to parties of the resolutions of disputes in a prompt and timely fashion (see for example Sali v SPC Ltd [1993] HCA 47; (1993) 67 ALJR 841 at 849; [1993] HCA 47; 116 ALR 625 at 636; Queensland v J L Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 153, 168; cf Doherty v Liverpool District Hospital (1991) 22 NSWLR 284 at 296).
I have also had reference to both the principles for the conduct of child related proceedings set out in s.69ZN of the legislation and the general duties and powers relating to evidence as set out in s.69ZX(1). In addition I am conscious that I should have regard to s.69ZV dealing with the admissibility of representations made by children and the manner in which such evidence might come before the Court.
With respect to each of the above I note that some support would be lent by same to the admission of Ms H’s evidence as it is, again, the best available evidence to address matters of significance to the child’s welfare which welfare must, pursuant to s.60CA, be the paramount consideration.
The principles for the conduct of child-related proceedings as set out in s.69ZN provide as follows:
Principle 1
(3) 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 in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
It would be possible for the defect in the present evidence (leaving aside the introduction of Ms H’s evidence) to be remedied by the adjournment of the proceedings and an Order for the preparation of an updated family report. It is to be remembered that the family report interviews and observation sessions were conducted the very day prior to the introduction of the present regime of week about care.
I note that no application of this nature has been made nor apprehended by either party.
On the basis of present delays in the Registry, and if the proceedings were adjourned, it is not possible for a family report to be obtained prior to February 2013 and, on that basis, the further hearing (and thus conclusion) of the proceedings would be adjourned to approximately April/May 2013 (a delay approaching 12 months).
Ms H’s evidence together with that of Ms Cooper would suggest that the child’s best interests are not presently served by the arrangement in place. That is not to suggest that I accept this evidence as proven but simply that it is a contention on the evidence presently before the Court which must be properly and fully tested.
It is regrettable that the chronology of events in the matter and, in particular, the timing of family report interviews and observations, has meant that the Family Consultant’s evidence is given by reference to circumstances which existed before the present circumstances came into being (the following day).
I am concerned, having regard to the principles for the conduct of child related proceedings that:
a)I could not fully and properly consider the needs of [Y] (let alone her brother) and the impact of the conduct of these proceedings (and in particular delay in the conclusion of same) through adjourning the proceedings without Ms H’s evidence. I further note that neither party has made application (not sought to relist the proceedings prior to the hearing to make application) for the preparation of an updated family report. Absent such application clearly no evidence could or would come before the Court (although it would be open to the Court to adjourn the proceedings of its own motion to enable that evidence to be commissioned) which could address the matters spoken to by the evidence of Ms H;
b)The Court is mandated, by the second principle, to actively direct, control and manage the conduct of the proceedings. That is not to suggest that management of the proceedings overrides or could override the provision of due process to the parties or the interest of the child as the paramount consideration. However, this determination is required, at this stage of the proceedings (and noting that the Court is given a power to make determinations at any stage of the proceedings pursuant to s.69ZR) to enable the effective conduct of the matter to conclusion;
c)On the basis of the contentions raised (which are, at this point, purely contentions or allegations which will need to be the subject of further evidence and testing) there is an issue raised as to the impact on this child of the present care arrangement. There are countervailing assertions that the arrangements are either fully and properly meeting the child’s needs or completely obviating against the child’s needs, best interests and general welfare. Accordingly, I am satisfied that the proceedings should and must be conducted in a fashion, including determinations as to the admission of Ms H’s evidence, that will enable prompt action to be taken with respect to such matters and, by analogy to s.60K and.s.60CG (although issues of family violence are not raised in the context of this case) the Court is obliged to take prompt action when issues of concern are raised. Indeed, s.60CA and the requirement to consider the child’s best interests as paramount would similarly compel the admission of the best (and indeed only) available evidence assessing [Y]’s adjustment to the present week about care arrangement and the service of her needs by that arrangement;
d)If one were to accept Ms H’s evidence on face value (which for present purposes I do and noting and acknowledging that it will be the subject of cross examination which may substantially reduce its probative value, impact or result in its partial or total rejection) the arrangements in place between these parties and any lack of agreement between the parents as to the extent to which they meet the child’s needs would continue to erode the already fragile capacity of these parents to cooperatively and in a child focused manner co-parent [Y]. Indeed it is suggested through the family report of Ms B and particularly addressed in the evidence of Ms Cooper (which is disputed but in parts conceded by Mr Cooper) that communication between these parents is already fraught and their capacity to make joint and cooperative parenting decisions limited;
e)The fifth principle compels the Court to conduct proceedings in a fashion that will obviate against undue delay and with as little legal formality, legal technicality and form as possible. I hasten to add that I am not satisfied that the conclusion of proceedings, as an object of itself, is what is intended by the legislators by the inclusion of this principle. However, I am concerned that the delay (identified above) which would occur in the event that the proceedings were adjourned to enable an updated family report to be commissioned would be significant. Further, I am concerned that neither party has taken any step to seek to commission such a report and, accordingly, the Court would adjourn the proceedings to enable such evidence to be obtained of the Court’s own volition (which is, in any event, envisioned and permitted by the general duties and powers set out in s.69ZX). However, I am not satisfied that such delay in the conclusion of the proceedings would benefit either the parties or [Y] (or indeed her brother [X] of whom little has been spoken with respect to this issue but who remains a child subject to the proceedings and a person of particular significance to [Y]) through further delay.
Having regard to and in the context of the above I am satisfied that balancing the two propositions being:
a)To admit Ms H’s evidence notwithstanding the overriding public policy concern suggested to potentially exclude it (even if such public policy ground is available); and
b)The further adjournment of the proceedings to enable objective evidence, particularly so as to present objectively, impartially and without the engagement of either party in presenting such evidence the child’s views and representations (as envisioned by s.69ZV) would allow, permit and require Ms H’s evidence to be admitted.
The balance in this circumstance is a fine balance and, again, should not be taken as the expression of any view by the Court of a general nature as to the admission of such material in any other circumstances as may present itself before the Court. However, the essential inadequacy in the evidence and the nature of the judicable controversy between the parents (who are unable to agree as to the present efficacy and/or benefit versus detriment to [Y] of the present week-about care arrangement) compels, when regarding the child’s best interests as paramount, that any public interest in the exclusion of Ms H’s evidence, on this occasion, be overridden in favour of the best possible evidence being available to the Court to enable the best possible determination as to [Y]’s future care and welfare arrangements to be made.
By reference to the above criteria (which I hasten to add are clearly not binding upon this Court):
a)I would be satisfied that the communications reported or relied upon by Ms H in forming and expressing opinions are those of [Y] (as to which there is inadequate evidence as to a “holding out” of confidentiality as well as a legal incapacity to provide informed consent to disclosure). Such representations by [Y] are prima facie admissible by reference to s.69ZV of the Family Law Act;
b)I would be satisfied that information provided by Ms Cooper can be the subject of her waiver as regards confidentiality and has been so (through the act of commissioning and filing the material of Ms H);
c)I would be satisfied that the disclosure of information from third party sources is, at least inferentially, consistent with the provision of that information wherein no holding out has been made that it would be in confidence. Indeed it is in the public arena having been produced to the Court;
d)I am not satisfied that the element of confidentiality as regards Ms H’s ongoing counselling relationship with [Y] is essential to the full and satisfactory maintenance of the relationship, of a therapeutic nature, between Ms H and [Y];
e)Whilst there is an interest within the community of maintaining confidentiality of counselling information, whether for children or adults, I am satisfied that it is not such as to represent an interest in “sedulously fostering” same;
f)Finally, I am not satisfied that the injury that would follow (if any were to follow) as a consequence of disclosure of communications is outweighed by the benefit that would be gained.
It is to be remembered that in the context of this case the only presently available and objective evidence (and particularly being evidence other than that of the parties) going to the issue in dispute (that is, the present efficacy of the equal time arrangement for [Y]) is that of Ms H.
The family consultant has not been in a position to assess that arrangement as it came into being the day after her interviews and observations. Thus, even if questions and material were put to the family consultant during cross examination (and largely comprising the parties divergent opinions as to the present utility of that arrangement and its impact on [Y]) the family consultant would not be in a position to offer any expert evidence with respect to same.
In this regard I note s.55 of the Evidence Act provides, with respect to relevance, that:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The evidence of the parties is entirely at odds. Mr Cooper asserts that the equal shared time arrangement is working perfectly well for [Y] and is, indeed, to her significant benefit. Ms Cooper asserts the opposite.
The Court is not in a position, the evidence not having yet closed and the evidence not yet having been fully tested, to form any assessment as to the veracity, credit or accuracy of either party or their evidence. Accordingly, the evidence that would flow from Ms H is clearly, at least prima facie, relevant.
Any issue as to the probative value of Ms H’s evidence (having regard to the issues touched upon above) can be the subject of appropriate testing during cross examination and appropriate submissions at the closing of the evidence.
However I am satisfied, in the specific context of this case and by reference to the (binding and non-binding) authorities to which I have referred above, that the evidence can and should be admitted as the best available evidence to address the issues in dispute at this time being the present workability and benefit to [Y] of the shared care arrangement presently in force.
More specifically and by reference to s.126B of the Evidence Act (NSW) I am satisfied as to the following:
a)The probative value of Ms H’s evidence (subject to its challenge and test by reference to the above matters) is, prima facie, sufficient for it to be admitted and to be relevant;
b)The evidence is important in the proceedings. As I have indicated it is the only non-party evidence as to [Y]’s experience of the equal shared care arrangement and the present workability of the equal shared care arrangement and [Y]’s reaction to and coping with such arrangement;
c)I am satisfied that the nature and gravity of the evidence is such that if it were excluded it could do nothing other than deprive the Court, both parties and, most importantly, [Y], of evidence which would be highly relevant (at least prima facie) to her welfare and well-being and would exclude the only objective or expert evidence which goes to and speaks to the most substantial issue in dispute in the parenting proceedings between these parties;
d)No other evidence is available, other that the contradictory evidence of the parties, as regards the judiciable issue before the Court and thus no evidence is available other than that which is potentially the subject of a protected confidence;
e)I am satisfied that there would be no likely or likely significant harm to any person as a consequence of that information being disclosed to the Court. There is some potential impact upon the ongoing nature of therapy between [Y] and Ms H or the nature of communication and trust between Mr Cooper and Mrs Cooper. However, I am satisfied that such risks as may pertain to same are outweighed by the benefit of evidence being before the Court (and the only evidence that it otherwise available to the Court);
f)I am not satisfied that there is any significant issue which arises or might arise such as to cause concern as to harm to any person who has provided confidential information;
g)Whilst the evidence is led by Ms Cooper I am not satisfied at this time and based upon the evidence available (which is as yet untested) that Ms H has stepped into the arena as a partisan participant in the proceedings or has stepped aside from her independent, professional objectivity such as to warrant the exclusion of the evidence by reference to the above considerations;
h)I am satisfied that the protected information, to the extent that it has come from Mr Cooper is information which would or could not be disclosed, by and large, by the parties through their evidence either as to their direct observations of [Y] and/or through their giving evidence as to the representations of [Y] to them (as would be admissible as representations of children pursuant to s.69ZV);
i)Whilst I am satisfied that there is a great public interest in preserving the confidentiality of therapeutic processes such as that engaged in by [Y] with Ms H that such public policy consideration (to the extent that it might be validly recognised) does not outweigh the benefit and utility to [Y]’s best interests (which are, after all, paramount pursuant to s.60CA of the legislation);
j)I am not satisfied that any information as to the identity of persons who have provided information to or which is relied upon by Ms H will occur beyond that already clearly before the Court and with the knowledge of each of those persons
For all of the above reasons I am satisfied that, as an exercise of discretion including pursuant to s.126B of the Evidence Act (NSW) that the evidence should be admitted and should not be excluded.
Conclusion
I am satisfied that the evidence of Ms H as contained in her Affidavit filed 13 July 2012 can and should be admitted (subject to the weight attached to same or any portion thereof following cross examination and/or any further application for exclusion of that evidence in whole or part having regard to matters that may arise in cross examination) and subject to Ms H being available for cross examination.
Accordingly, I make Orders as set out at the commencement of this Judgment.
I certify that the preceding one hundred and sixty-six (166) paragraphs are a true copy of the reasons for judgment of Harman FM
Associate:
Date: 3 August 2012
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