COREY & JEBBITT

[2018] FamCA 1033

FAMILY COURT OF AUSTRALIA

COREY & JEBBITT [2018] FamCA 1033

FAMILY LAW – PRACTICE AND PROCEDURE – Objection to subpoena – where the mother filed a subpoena to C Group Queensland – where C Group Queensland objected to the production of documents pursuant to ss 10D and 10E of the Family Law Act 1975 (Cth) – where a subpoena needs to specify if documents are sought pursuant to s 10E(2) – where the mother was self-represented – where the mother ought have the opportunity to amend the terms of her subpoena if she wishes, rather than re-issuing a subpoena in the correct terms hence delaying the trial.

Family Law Act 1975 (Cth) ss 10B, 10C, 10D, 10E, 68L, 69ZX, 97(3)

C Group-Unifam Counselling & Mediation & Harkiss (2011) FLC 93-476; [2011] FamCAFC 159

APPLICANT: Mr Corey

RESPONDENT: Ms Jebbett

INDEPENDENT CHILDREN’S LAWYER: Anthony Kingston, Norman & Kingston Solicitors

INTERVENER: C Group Queensland

FILE NUMBER: BRC 9223 of 2017

DATE DELIVERED: 3 December 2018

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Kent J

HEARING DATE: 26 November 2018

REPRESENTATION

SOLICITOR FOR THE APPLICANT: Landmark Lawyers

THE RESPONDENT: In person

INDEPENDENT CHILDREN’S LAWYER: Mr Kingston, Norman & Kingston Solicitors

SOLICITOR FOR THE INTERVENER: Mr Smith

IT IS NOTED that publication of this judgment by this Court under the pseudonym Corey & Jebbett has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC 9223 of 2017

Mr Corey

Applicant

And

Ms Jebbett

Respondent

And

Independent Children’s Lawyer

And

Intervener

REASONS FOR JUDGMENT

1. The child D born in 2012 and aged six years is the subject of these parenting proceedings[1] between his parents Mr Corey (“the father”) and Ms Jebbett (“the mother”) and the lawyer appointed under s 68L of the Act to independently represent the child’s interests in the proceedings (“the ICL”).

   [1]Pursuant to Part VII of the Family Law Act 1975 (Cth) (“the Act”).

2. On 24 September 2018 orders were made to facilitate the trial of these proceedings set to commence today for three days.  Those orders included an order, as requested by the mother, granting her leave to cause a subpoena to issue to one Mr B of C Group.

3. On 24 October 2018 the mother caused a subpoena to issue directed to:

   “ The proper officer” [C Group] Queensland – [G Program] [E Town]- [Mr B]

4. The subpoena directed the production of documents to the Court.  It particularised the following documents:

   1.        a copy of this subpoena

   2. any email to [Mr Corey] from [Mr B] counsellor and group facilitator.

   3.        Any email from [Mr Corey] to [Mr B].

   4.        Any note / memo / recording produced during Counciling.

   5.        Any phone calls to Ambullance

   6. Any extra information that can assist in regards to best interest of a child.

   7.        Any phone call to [Ms Jebbett]

   (As per original)

5. As to the terms of the subpoena and the documents it identifies, it ought be noted that the mother’s country of origin is Country F and English is not her first language.  She is self-represented and has no relevant legal training or experience.  As against that, the mother is university educated including via completion, in 2009, of a Masters of Accounting degree whilst she was living in Melbourne.

6. On 2 November 2018, C Group Queensland filed a Notice of Objection to the subpoena.  Relevantly, the details of the objection included the following:

   4.[C Group] is a designated organisation pursuant to section 10C(1)(b) of the Family Law Act 1975 (Annexure 1). The family counsellor conducted family counselling as defined in section 10B of the Act, with the Applicant. [C Group] objects to the production of all the documents which are responsive to the subpoena because the counsellor must not disclose communications made to the counsellor while conducting family counselling, under section 10D(1) of the Family Law Act 1975.

   5. Evidence of the communication said in the company of the family counsellor conducting family counselling is not admissible, under section 10E(1) Family Law Act 1975.

7. Last Monday 26 November 2018 Mr Trent Smith, whom I understand to be an in-house lawyer employed by C Group Queensland, attended a hearing at which the objection to the subpoena was heard.  In relation to that discrete matter, neither the father nor the ICL addressed any submissions to the Court.

8. Mr Smith, on behalf of C Group Queensland, produced to the Court via a sealed envelope a bundle of documents (pages 1 – 19) albeit maintaining C Group Queensland’s objection to those documents being produced or disclosed.  It was acknowledged that the Court may need to peruse the relevant documents to determine whether or not the objection to subpoena was properly established.  Mr Smith also provided extensive and helpful written submissions.

9. It can be accepted that C Group Queensland has at all material times been a designated organisation within the meaning of s 10C(1)(b) of the Act.

10. It is not in issue that the father has previously made contact with C Group Queensland and has undertaken counselling for post-separation parenting.

11. As the submissions on behalf of C Group Queensland identify, from about August 2016 the father periodically attended family counselling conducted by Mr B who at all material times has been an employee of C Group Queensland and a family counsellor authorised by C Group Queensland pursuant to s 10C(1)(b) of the Act.

Relevant Law

1. Section 10B of the Act defines “family counselling”. The definition is expressed in broad terms. Section 10B 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; or

   (c)  one or more persons who may apply for a parenting order under section 65C to deal with issues relating to the care of children.

2. Section 10D(1) of the Act mandates the non-disclosure by a family counsellor of any communication made to the counsellor whilst conducting family counselling “unless the disclosure is required or authorised by this section”. Thereafter the section identifies, in subsection (2), that a family counsellor must disclose a communication if the counsellor holds a reasonable belief that such disclosure is necessary to comply with the law; whilst subsections (3), (4) and (5) thereafter make provisions for the possibility of a family counsellor disclosing communications, in the discretion of the family counsellor.

3. Notably, subsection (6) provides:

   (6)  Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.

   Note:    This means that the counsellor’s evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.

4. Section 10E of the Act thereafter provides as follows:

   10E  Admissibility of communications in family counselling and in referrals from family counselling

   (1)  Evidence of anything said, or any admission made, by or in the company of:

   (a)  a family counsellor conducting family counselling; or

   (b)  a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;

   is not admissible:

   (c)in any court (whether or not exercising federal jurisdiction); or

   (d)  in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).

   (2)  Subsection (1) does not apply to:

   (a)  an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or

   (b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;

   unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

   (3)  Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961.

   (4)  A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.

5. The operation of these provisions was considered in detail by Coleman J exercising the jurisdiction of the Full Court as a single judge in C Group-Unifam Counselling & Mediation & Harkiss.[2] 

   [2](2011) FLC 93-476 (“Unifam”).

6. As Coleman J observed in Unifam, subsections 10D(3) to (5) of the Act provide for discretionary disclosure by a family counsellor if the identified criteria for disclosure are met. The subsections do not provide the Court with the same discretion or any power to order disclosure. Commencing at [39] of Unifam, Coleman J stated:

   39.In the Court’s view, s 10D(3) provides for disclosures which are “authorised” rather than “required”. Interpreting the section in the way urged by Counsel for the ICL would endow “may” with a meaning quite different from, and inconsistent with its normal meaning, contrary to the provisions of s 33 of the Acts Interpretation Act. If the legislative intention had been to require disclosure in the circumstances described in s 10D(3), “must” would have appeared instead of “may”.

   40. In the circumstances of this case, s 10D(3)(a) was potentially enlivened, both persons who made the relevant communications being over eighteen and having consented to the counsellor disclosing communications made by them to him or her in the course of family counselling. In those circumstances, the family counsellor “may” have disclosed the communications. He or she was not thereby obliged to do so. Nothing in s 10D(3), or elsewhere in s 10D, empowered the learned Federal Magistrate to require the family counsellor to disclose the communications made to him or her.

   41.Section 10D of the Act creates and defines the privilege attaching to communications made to a family counsellor in the conduct of family counselling, and articulates the circumstances in which that privilege may, or must be waived. Given the absence of legislative constraint upon the persons or entities to whom, or to which disclosed communications may be published, failure to observe the legislative imperatives of s 10D could have quite unintended consequences, and potentially adverse implications for the welfare of children referred to in, or connected with such communications. The Court’s construction of s 10D gains additional support from s 15AA of the Acts Interpretation Act.

7. In Unifam, Coleman J rejected an argument to the effect that s 69ZX of the Act provided power for the Court to order disclose contrary to the terms of s 10D.

8. It can be seen that subsection (1) of s 10E renders evidence of anything said, or any admission made, by or in the company of a family counsellor conducting family counselling not admissible. However, subsection (2) then provides that subsection (1) does not apply to:

   (a)an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or

   (b)a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;

   unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

9. In Unifam the Court held that if documents, pursuant to s 10E(2) were being sought, the subpoena would need to specify this so as to ensure the subpoena is not oppressive in terms. Relevantly, Coleman J observed:

   66. The terms of ss 10E(1) and (2) are instructive. It is clear that, unless, and even then only in the circumstances there referred to, admissions or disclosures were made in the terms referred to in s 10E(2)(a) or (b), there is an absolute prohibition, in all courts, on the admissibility of evidence of “anything said, or any admission made, by or in the company of”, in this case, a family counsellor conducting family counselling.

   67. There is accordingly force in the contention of Senior Counsel for Unifam that, if the purpose for which the Unifam documents were subpoenaed was to obtain evidence potentially falling within the terms of s 10E(2), and, in fairness it should be acknowledged that the ICL did not cause the subpoena to Unifam to be issued, then it was necessary, given the clear terms of ss 10E(1) and (2), for the subpoena to be framed in the terms of s 10E(2). Whilst so doing would have obliged Unifam to produce such documents as it had fitting that description, they would not necessarily have been admissible having regard to the concluding words of s 10E(2), but that would be a matter for debate at the time they were sought to be tendered.

10. After discussing the law in relation to the use of subpoenae as a means of obtaining discovery, Coleman J concluded:

    72. To the extent that the documents which Unifam may have produced could have come within the terms of s 10E(2), the subpoena does not adequately identify them. It readily could have. There is a material distinction between seeking production of documents which, if they exist, can be readily identified and produced in circumstances where such documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible according to general law, and s 10E of the Act. The latter offends both. Given the terms of s 10E, the subpoena to Unifam, drawn in the terms in which it was, can be seen as oppressive.

    73. As noted at the outset of these Reasons, it was squarely and properly conceded by Senior Counsel for Unifam that, had the subpoena been expressed in the terms of s 10E(2)(a) and (b), and Unifam held any documents falling within those provisions, they would have been produced. Having regard to the terms of s 10D(2), the scope for gaining disclosure of “communications” made to a family counsellor during the conduct of family counselling in reliance upon s 10E(2) would appear to be limited.

    74. Although they would not necessarily have thereby been admissible, the exception created by s 10E(2) of the Act may have empowered the learned Federal Magistrate to make the order he did on 26 May 2011. The failure of the subpoena to seek production of documents falling within those provisions deprived the learned Federal Magistrate of that source of power.

11. It is to be borne in mind that the Federal Magistrate had made an order upholding the subpoena to Unifam in circumstances where it was not in issue that “consent” had been given by the relevant parties to disclosure. The error of the Federal Magistrate was his non-acceptance that if s 10D(3) of the Act was enlivened, Unifam retained a discretion in relation to disclosure of documents falling within the scope of the section. In short, no issue arose in Unifam as to whether Unifam held documents meeting the description of the exception contained in s 10E(2) of the Act. In Unifam, it was conceded on behalf of Unifam that “had the subpoena, on its terms, sought the production of any document or documents recording an admission or disclosure that a child has been abused or is at risk of abuse, then those documents only would be produced, unless the exception in S 10E(2) of sufficient evidence from other sources, could be satisfied”.

12. In this case, Mr Smith correctly observes in his written submissions that there is no mention of s 10E of the Act in the subject subpoena served on C Group Queensland.

13. Mr Smith’s written submissions contain in paragraph 26:

    It is not contended that there are necessarily any documents which fall within section 10E(2) of the Act. However, only documents which fall within such category should be considered disclosable in this instance. In circumstances where such request has not been made, it is submitted that this Court is not empowered, to provide the documents to any party or the Independent Children’s Lawyer. If material is sought pursuant to section 10E(2) a new subpoena clearly identifying this should be served.

14. On that basis, C Group Queensland seeks an order upholding its objection to producing the documents and an order setting aside the subpoena.

15. As was acknowledged by Mr Smith in the course of his oral submissions, the documents produced by C Group Queensland include one document which arguably fits the criteria of s 10E(2)(a) of the Act, namely “an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse”.

16. Of course in the circumstances I have not had full argument about whether or not the document meets that description and moreover, whether the Court should be satisfied about the proviso in subsection (2) namely, that in the opinion of the Court, there is sufficient evidence of the admission or disclosure available to the Court from other sources. 

17. On a strict approach, the submissions on behalf of C Group Queensland can be accepted with the result that its objection to producing the documents under subpoena ought be upheld and the subpoena ought be set aside. 

18. However, s 97(3) of the Act provides that “[i]n proceedings under this Act, the court shall proceed without undue formality and shall endeavour to ensure that the proceedings are not protracted”. Moreover, the interests of the child are paramount in these proceedings and of course any evidence of risk to the child is of critical importance.

19. In my view, these features combined to dictate that this self-represented mother without any legal training ought to have the opportunity to amend the terms of her subpoena, rather than re-issuing a subpoena and hence delaying this trial, to direct the subpoena to production by C Group Queensland of “any document or documents recording an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse”.  On that amended form of subpoena, C Group Queensland ought have the opportunity to consider the production of any such document or to re-consider the objection to a subpoena in those terms.

20. I therefore propose to defer the making of orders with respect to the subpoena pending the mother having the opportunity to consider these reasons for judgment and seeking to amend her subpoena should she choose to do so, and likewise in that event affording C Group Queensland the opportunity to consider its position.

21. For these reasons I defer the making of formal orders with respect to the subpoena and the objection to that subpoena.

22. For completeness, having read all the material for the trial that is available since the hearing of the objection to subpoena last Monday, it is not apparent to me that at least on the filed evidence it could be said that there is sufficient evidence of the relevant admission “available to the Court from other sources” within the meaning of the exception expressed in s 10E(2) of the Act. However, that may well also be a matter which is the subject of submissions if the position is reached that a relevant document is produced by C Group Queensland in response to any amended subpoena.

I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Kent delivered on 3 December 2018.

Associate: 

Date:  3 December 2018