Crawford & Sisinis and Anor
[2014] FamCA 912
•27 October 2014
FAMILY COURT OF AUSTRALIA
| CRAWFORD & SISINIS AND ANOR | [2014] FamCA 912 |
| FAMILY LAW – SUBPOENA – Objection – public interest immunity – where child’s psychologist objects to the production of notes – where parents had previously signed a confidentiality agreement which provided information obtained in the therapeutic context would be “not discoverable” in future Family Court proceedings – consideration of public interest immunity – no public interest immunity between a child and a psychologist – orders made for inspection. |
| Family Law Act 1975 (Cth) ss 10C, 10G, 10D, 10E, 60CA, 69ZN Benson & Hughes (1994) FLC 92-483 National Employers Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372 |
| APPLICANT: | Ms Crawford |
| RESPONDENT: | Mr Sisinis |
| INTERVENOR: | Ms Dolan |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
| FILE NUMBER: | ADC | 1255 | of | 2012 |
| DATE DELIVERED: | 27 October 2014 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 21 October 2014 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Pyke QC |
| SOLICITOR FOR THE APPLICANT: | Adelaide Family Law |
| COUNSEL FOR THE RESPONDENT: | Ms Basheer |
| SOLICITOR FOR THE RESPONDENT: | Katrina Lind Legal |
| COUNSEL FOR THE OTHER PARTY: | Ms Dickson |
| SOLICITOR FOR THE OTHER PARTY: | Franklin Legal |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mrs West |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
The legal representatives for the parties including the Independent Children’s Lawyer be at liberty to inspect documents (including those marked confidential) produced by Ms Dolan of Practice B pursuant to subpoena issued on 29 August 2014.
The parties and their legal representatives be restrained and an injunction is hereby granted restraining them from discussing the contents of the documents produced pursuant to the said subpoena with any other person not directly related to the proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Crawford & Sisinis and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 1255 of 2012
| Ms Crawford |
Applicant
And
| Mr Sisinis |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 29 September 2014 orders were made that adjourned the trial to 27 October 2014. The proceedings involve a complex parenting dispute in respect of the future care arrangements for the child E, (“the child”) born in 2002, in particular, the extent of the time that the child would spend with Mr Sisinis, (“the father”).
The adjournment of the trial was made necessary by the father’s application seeking to file a Further Amended Initiating Application which now seeks orders that in addition to equal shared parental responsibility for the child, she shall live primarily with the father and spend four nights a fortnight with Ms Crawford, (“the mother”). The orders sought by the father represent a significant change from orders previously pursued by him.
For her part, the mother seeks that in addition to joint parental responsibility for long term care, welfare and development of the child, she shall have the sole responsibility for the day to day care, welfare and development of the child.
In addition, the mother seeks orders that would see the child spending relatively limited time with the father restricted to two hours each Monday under the supervision of the paternal grandfather, some time on Father’s Day and on Christmas Day providing that it is taken at the paternal grandfather’s home.
Whilst there are other options put forward by the mother, the constant thread is that the father’s time should be supervised.
Notwithstanding the offer of time by the mother (albeit limited), the father’s position is that she is not encouraging of the child spending time with him and considers that the mother is attempting to alienate the child from him.
On 25 July 2014, the mother issued a subpoena to Ms Dolan of Practice B seeking that she produce the following documents:-
·All records relating to the parties [the father], [the mother] and the child [E] born … 2002.
On 12 August 2014, Ms Dolan filed a Notice of Objection seeking to object to the production of some or all of the documents for the following reasons:-
Both parties agreed on 14 November 2011 (that) my involvement with [the child] would not be used in future Family Court proceedings. See correspondence.
The Notice of Objection annexes a letter from Ms Dolan which provided some background to the child’s attendance upon her.
In summary, the parties and the child attended upon Ms Dolan because the child was sad and anxious arising out of her parent’s separation and some “counselling/therapeutic intervention for [the child]” was thought important.
Following apparent discussion between the parties, agreement was reached that the counselling to be provided by Ms Dolan in so far as it involved the child would be “not discoverable” in respect of any future Family Court proceedings. Obviously if the child disclosed a matter that required mandatory notification, this would be an exception to the confidentiality that was apparently agreed.
It is clear from the letter that the child understood there were certain circumstances where complete confidentiality could not be guaranteed, but in particular Ms Dolan notes the following:-
She has also consented to me giving feedback to her parents on outcomes of sessions.
Following the change in the orders sought by the father, the mother considered that the interaction between the parties and the child with Ms Dolan may well now have an important evidentiary focus. Whereas prior to the father’s revised orders the mother did not press the production of documents by Ms Dolan, that attitude has now changed.
This application therefore relates to whether the objection of Ms Dolan should be upheld.
THE OBJECTION
Ms Dolan clearly takes most seriously the extent to which the parties and thereafter possibly the Court should have access to documents and information obtained under the cloak of confidentiality. She was represented by counsel and it was put to me that the matters raised in this hearing would have wide ranging consequences in circumstances where psychologists undertake therapeutic intervention and/or counselling with a child on the understanding that what he or she says will not be disclosed other than in the most unusual of circumstances.
The objection of Ms Dolan is supported by an affidavit filed 16 October 2014 which records the circumstances in which she became involved with the parties and the child. She provides a history from the parties that suggests the child was evidencing significant anxiety prior to going to the father’s home. The parties had separated earlier in the year and immediately following separation the child spent approximately half her time with each of the parties. A dispute soon arose in that the father alleges that the mother unilaterally changed the arrangements.
What was agreed however is that the child had not been coping well with the separation and both parties agreed that therapeutic intervention and assistance was important for the child. The parties were not agreed as to who should shoulder the blame for the child’s apparent distress.
Ms Dolan discussed with the parties and ultimately secured their agreement that her sessions with the child would be the subject of non-disclosure. She annexes a copy of the guidelines produced by the Australian Psychological Society for working with young people. Whilst a consideration of the guidelines is not necessarily determinative of the objection, a recitation of the guidelines in respect of confidentiality is informative:-
5.2Psychologists disclose confidential information obtained in the course of their provision of psychological services only under any one or more of the following circumstances:-
(a)with the consent of the relevant client or a person with legal authority to act on behalf of the client;
(b)where there is a legal obligation to do so;
(c)if there is an immediate and specified risk of harm to an identifiable person or persons that can be averted only by disclosing information; or
(d)when consulting colleagues, or in the course of supervision or professional training provided the psychologist:-
(i)conceals the identity of clients and associated parties involved; or
(ii)obtains a client’s consent, and gives prior notice to the recipients of the information that they are required to preserve the client’s privacy, and obtains an undertaking from the recipient of the information that they will preserve the client’s privacy.
Clearly, there are limits to the confidentiality which may include “any legal and other limits to confidentiality” noting that “different settings and types of referrals such as mental health, schools, the Family Court, and children’s protective services will have different implications for the limits to confidentiality”.
Accordingly, and by reference to the guidelines alone, there is no suggestion that there can be an absolute bar to disclosure.
It is not considered or contemplated in the guidelines that a circumstance can exist where the parties can dictate that information disclosed within “the therapeutic context” is not discoverable in respect of future Family Court proceedings.
The letter of Ms Dolan dated 15 November 2011 seems to suggest that the parties were seeking to extend the confidentiality of the information provided to possible future Court proceedings notwithstanding that it is at least foreshadowed that Court proceedings may be an exception to the confidentiality of therapeutic information.
Ms Dolan saw the child on 14 November 2011, 1 December 2011 and 9 February 2012.
Upon receipt of the subpoena Ms Dolan divided her file into the confidential material that presumably involved the child in respect of the therapeutic sessions and the non-confidential material which presumably involved interaction between the parties and Ms Dolan.
SUBPOENA PROCESS
The principles for issuing a subpoena to a non-party are:-
(1)That the requesting party is only able to obtain a document or documents relevant to an issue in the proceedings;
(2)That the steps to be followed are conveniently set out in the often quoted remarks of President Moffit in National Employers Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at 381:-
The first is obeying the subpoena, by the witness bringing the documents to the Court and handing them to the Judge. This step involves the determination of any objections of the witness to the subpoena or to the production of documents to the Court pursuant to the subpoena. The second step is the decision of the Judge concerning the preliminary use of the documents, which include whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the Court by cross examination or otherwise. It is the third step which alone provides material upon which ultimate decisions in the case rests. In these three steps the stranger and the parties have different rights, and the function of the Judge differs.
In Hatton v Attorney-General of the Commonwealth of Australia (2000) FLC 93-038 the Full Court set out a number of examples where a Court may determine that it is proper to set aside a subpoena:-
·If the subpoena is for an improper purpose namely to obtain discovery against a third party
·Where it might be oppressive to comply with a subpoena
·Where a party embarks upon a “fishing expedition”
·That the subpoena should be set aside because it lacks relevance to the proceedings
The objection to the subpoena is not taken on the basis that it is inappropriate discovery, oppressive, a fishing exercise or that there is a lack of relevance. The objection arises out of the purported statement of confidentiality and therefore, the non-disclosure of the information.
The first step in the subpoena process is satisfied namely in that the documents have been brought to Court. The objection comes within the second step namely, the preliminary use to which the documents should be put which would include the inability of the parties to inspect those documents.
It seems that the essence of the objection notwithstanding that it is founded upon the perception of confidentiality, is that as a matter of public interest immunity the documents and information should be prevented from disclosure and inspection to the parties.
STATUTES
The Family Law Act 1975 (Cth) (“the Act”) prohibits a family counsellor from disclosing communications made during family counselling. Even if the parties consent, a Court cannot compel a family counsellor to disclose communications (see Unitingcare-Unifam Counselling and Mediation & Harkness and Anor (2011) 47 Fam LR 12). However, the confidentiality provisions contained within ss 10D, 10E, 10F and 10J do not apply as Ms Dolan is not a family counsellor or family dispute resolution practitioner as defined in s 10C or s 10G of the Act. In any event, Ms Dolan acknowledges that she is not a family counsellor as defined.
The Act however does provide specific provisions for non-disclosure in relation to accredited family counsellors, and in the decision of In the Marriage of Lace (1981) 7 Fam LR 631 Frederico J held it would be “contrary to the policy of the Act” to allow evidence to be given of conversations between the parties and two individuals who, although acting as marriage counsellors, did not meet the definition of marriage counsellors under s 18 of the Act (the equivalent of the present s 10C). Frederico J considered the authorities and found that:-
Bona fide negotiations between spouses with a view to effecting compromise of a matrimonial dispute must be taken to be without prejudice.
It is trite to highlight that the decision of his Honour was prior to the introduction of s 131 of the Evidence Act 1995 (Cth) which has rendered evidence of settlement negotiations between parties generally inadmissible.
The Evidence Act 1995 (Cth) does set out a number of privileged relationships outside of the traditional legal client privilege i.e. protection of journalists and their sources (s 126H) and religions confessions (s 127), but the relationship between a client and a psychologist or psychiatrist does not receive the same protection.
Section 67D and 67E of the Evidence Act 1929 (SA) which by virtue of the Judiciary Act 1903 (Cth) does apply to this Court and provides for certain communications made in a therapeutic context to be protected by public interests immunity. The sections however rely upon the communication being for the purpose of counselling or therapy for a victim or alleged victim of sexual abuse (see B & D [2003] FamCA 386). There is however a general discretion to exclude evidence in s 135 and s 136 but that relates to the third step namely, whether or not evidence should be admitted during the course of the trial proceedings. Accordingly, there are no statutory grounds upon which a subpoenaed party could object to the subpoena.
PUBLIC INTEREST IMMUNITY
In Cooper & Cooper (2012) 38 Fam LR 425 at [48], the Court heed that whilst it would be ideal if all family counselling services could offer the same protection, there “is no basis, founded upon legislative interpretation and absent a consideration of public policy considerations…which would warrant such position being arrived at”.
The High Court in Sankey & Whitlam (1978) 142 CLR 1 established two broad categories of public interest immunity and at [39] Gibbs ACJ said:-
An objection may be made to the production of a document because it would be against the public interest to disclose its contents, or because it belongs to a class of documents which in the public interest ought not be produced, whether or not it would be harmful to disclose the contents of the particular document.
The Court has discretion to examine the documents and see whether they support a claim for public interest immunity (Zarrow v Australian Securities Commission (1992) 34 FCR 427 at [435].
The documents relating to the therapeutic treatment of the child by Ms Dolan could only be considered in respect of the second of the category of documents as referred above.
Counsel for Ms Dolan argues that to compel the production of documents between a psychologist and a client (and by necessary implication those documents would represent a particular class of documents) would be against the public interest as it would discourage others from seeking counselling for their children and/or comprise the therapeutic outcomes. That proposition is relied upon by Ms Dolan in her affidavit at [22] [24].
Chisolm J as he then was, considered the issue of public interest immunity or privilege in Benson & Hughes (1994) FLC 92-483 where a father sought to issue a subpoena to a Chamber Magistrate who the maternal grandparents had consulted in relation to custody proceedings. His Honour responded to such an application in the following manner:-
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)
His Honour held that public interest immunity did exist in this instance but that it should be weighed against the interests of the child. At page 81,045 his Honour discussed how a Court should balance the paramountcy principle when considering cases in which “there is some clear and important other conflicting interest” and concludes that “the law requires the Court to take account of the child’s welfare but balance it against the other interests or policy”.
The “preponderance of social benefit” performed by the Chamber Magistrate ultimately meant the evidence was excluded.
In Hutchings & Clarke (1993) FLC 92-373, a failure to disclose settlement negotiations would have meant that the child would remain in conditions detrimental to his or her welfare. It was alleged the father told the mother that he only wanted custody of the child so that he could claim a government benefit. In that instance, public policy considerations required the Court to override the privilege of parties engaged in negotiations.
Public interest immunity was also used to successfully uphold an objection to a subpoena in Goldy & Goldy(No 2) [2011] FamCA 418 in which a party sought to subpoena the “Kids Help Line”. Dawe J considered the Court “should be very wary about issuing subpoenas to an organisation which relies upon its confidentiality for its very existence. The benefit of the services provided by Kids Help Line to the children and young people who use that service is significant”. Dawe J upheld the objection on grounds of public interest immunity. The father in that case also sought to subpoena the child psychologist. Leave was granted for the subpoena but it was done solely for the purpose of establishing whether the counselling undertaken by the psychologist would fit within the exceptions found in the Evidence Act 1929 (SA).
In D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589, the House of Lords ruled that evidence could not be given of confidential information that would disclose the identity of people who reported suspected child abuse to a child protection organisation. Lord Diplock at 594 said:-
The fact that information is being communicated by one person to another 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 to the informant, a more important public interest is served by protecting the information of the identity of the informant from disclosure in a Court of law.
Lord Hailsham at 230 stated that “the categories of public interest are not closed, and must alter from time to time whether by restriction or by extension as social conditions and social legislation develop” and they should not be limited to “the effective functioning of departments or organs of central government”.
At page 612, Lord Simon concluded that while it:-
May be a very material consideration to bear in mind when privilege is claimed on the grounds of public interest…I do not think myself that confidentiality itself establishes any public interest in the exclusion of relevant evidence.
His Lordship opined at 607:-
These various classes of excluded relevant evidence may for ease of expedition be presented under different colours. But in reality they constitute a spectrum, refractions of a single light of the public interest which may outshine that of the desirability that all relevant evidence should be adduced to a Court of law.
A narrower view of public interest immunity was adopted by R v Young (1999) 46 NSWLR 681 at [54] were Spigelman CJ held that public interest immunity “is concerned with, and the terminology should be confined to, the conduct of governmental functions”. His Honour went on to note at [93] that while the categories are not closed:-
the recognition of a new category of privilege requires the formulation of public policy by the Courts, within the confines of the proper role of Courts. It is only appropriate for the Courts to recognise a category of public policy which is capable of precise statement, and which reflects so widely held an opinion, that the Court’s reasoning can be described in terms of reasoning “recognition” rather than “creation”.
PSYCHOLOGISTS AND PUBLIC INTEREST IMMUNITY
In Feinster & Feinster and Anor [2006] FamCA 232 Watts J considered that:-
Public interest immunity differs from privilege as it operates for the benefit of the public interest in general and does not protect private relationships or interests.
That case concerned a father who had issued a subpoena seeking production of all his medical records from a health service during a time in which he was an involuntary patient. The health service objected to the subpoena on the grounds of public interest immunity, abuse of process, relevance and s 130 of the Evidence Act 1995 (Cth).
His Honour noted that while a preference had been expressed to narrow claim to public interest immunity to situations involving a government function it has “also been said that the categories giving rise to public interest immunity are not closed and they may be extended by analogy with a known category of public interest exceptions”.
Watts J drew a parallel between cases involving involuntary medical treatment of prisoners, being a recognised class of public interest immunity and those involving involuntary mental health patients to uphold the objection on the grounds of public interest immunity. Following a review of the authorities, his Honour said at [74] that:-
It is clear that the ordinary psychiatrist/patient relationship does not attract public interest immunity.
Watts J further noted that as the claimed public interest immunity was for the benefit of the public, it could not be waived by the parties (see [54]).
In Jermyn & Carling [2012] FMCAfam 184 the father issued a subpoena to the mother’s psychologist in relation to her handwritten notes from the treatment of the mother’s experiences of childhood sexual abuse. The mother and the psychologist objected on grounds of relevance and public interest. The Court undertook an extensive review of both Australian and Canadian authorities and concluded that the production of previously provided typed notes would be sufficient. Harman FM (as he then was) stated that to release the additional information would “be to victimise her and inappropriately and in a fashion that would be against the public interest”. His Honour focused on the “significant potential for impact upon her psychological and emotional health”. It was possible that the disclosure would cause the mother significant harm. Accordingly, his Honour’s decision would seem to be based upon public interest immunity namely, the preservation of the confidentiality of persons disclosing information in the context of therapeutic counselling.
That of course is not the final and only consideration. The information may be of such probative value that the proper administration of justice outweighs public interest immunity.
It is an important consideration that the interaction between the child and Ms Dolan did not endure beyond three appointments and that for some years there has been no ongoing involvement. It cannot be said that Ms Dolan and the child are in a therapeutic relationship.
In the context of the current circumstances, notwithstanding that E is a child, I do not consider that her involvement with Ms Dolan would in and of itself fall into a category different to any person that might seek medical or other assistance and in doing so is either given an assurance of privilege or confidentiality, or from the circumstances reasonably forms that view. Clearly, the guidelines referred to by Ms Dolan contemplate circumstances where the information obtained may be required to be disclosed.
I do not consider that the reference in the letter of Ms Dolan which refers to non-disclosure in the event that Family Court proceedings are issued, could elevate the relationship between a child and a psychologist to a status that would allow considerations of public interest immunity.
INTERESTS OF THE CHILD
The consideration of a subpoena is not to be determined by reference to s 60CA namely, that a Court must regard the best interests of the child as the paramount consideration. That is not to suggest that the interests of the child play no part. Section 69ZN sets out the principles for conducting child related proceedings and it is clear from the first principle as set out in s 69ZN (3) 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.
I have also had regard to the general proposition that weight can be given to the welfare and the interests of the child which may impact upon the manner in which rules of evidence are utilised.
Consideration however of the impact of the conduct of the proceedings on the child is not an abstract concept. If s 69ZN (3) is applicable, there needs to be evidence as to the potential effect on the child if the information the subject of the objection is released. In this case no such evidence has been presented. Counsel for the objecting party was clear that the objection had its foundation in the proposition that the relationship between a child and a psychologist involving therapeutic counselling was a category of activity that would invoke public interest immunity.
Accordingly, whilst there may be cases where it could be argued that an objection should be upheld on the basis of the potential detrimental effect on the child, that is not argued here.
It should however not be forgotten that the argument is not necessarily always to be in the negative. It is entirely possible that notwithstanding public interest immunity, the interests of the child would be served by the information being admitted in circumstances where it might be the only evidence available to assist the Court. That is, far from having a detrimental impact on the child, it may be advantageous for the evidence to be presented.
CONCLUSION
I do not consider that the involvement of Ms Dolan and the child is a relationship that should be protected by a claim of public interest immunity. The relationship is personal and whilst potentially important to the child, in the circumstances of this case, does not have a wider application.
There is no evidence as to the effect on the child if any of the information is released and there is no basis to assume that given the efflux of time, even if the child learns of the release of the information, it will necessarily have an adverse impact upon her.
Whilst there is a suspicion that the information is likely to be of peripheral relevance only taking into account the current information evidencing the child’s wishes, no point was taken and I have not been asked to consider the documents to determine whether their relevance is so weak that the objection should be upheld on that basis alone.
The documents have already been produced to step one of the subpoena process, my order will enable step two to be undertaken and there remains a consideration as to whether any of the information disclosed in the material provided by Ms Dolan should be introduced into evidence.
I make orders as appear as the commencement of these reasons.
I certify that the preceding sixty nine (69) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 27 October 2014.
Associate:
Date: 27 October 2014
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