Eddings & Eddings (No. 2)

[2008] FamCA 707

FAMILY COURT OF AUSTRALIA

EDDINGS & EDDINGS (NO. 2) [2008] FamCA 707

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenae – concerns over inspection of documents produced pursuant to subpoenae – potential for misuse – balance right to privacy against need for parties to be fully appraised of information - need compelling case to prevent access by legal representatives

Family Law Rules 2004 (Cth) Rule 15.27

APPLICANT: Mr Eddings

RESPONDENT: Ms Eddings

FILE NUMBER: BRC 5878 of 2008

DATE DELIVERED: 14 August 2008

PLACE DELIVERED: Brisbane

PLACE HEARD: Brisbane

JUDGMENT OF: Murphy J

HEARING DATE: 14 August 2008

REPRESENTATION

SOLICITOR FOR THE APPLICANT:

Mr Johnson

Johnson Solicitors and Attorneys

FOR THE RESPONDENT: Respondent appears on her own behalf

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

Legal Aid Queensland

Orders

IT IS ORDERED THAT

1. In respect of the Application in a Case filed by the mother on 7 August 2008 containing 4 type-written paragraphs of orders sought:

   a.paragraphs 1, 3 and 4 be struck out;

   b.the phrase “Department of Child Safety” and “[N School]” be deleted from paragraph 2;

   c.leave be granted to the mother to issue subpoena to the Director-General of the Queensland Department of Health, the Director-General of Centrelink and the Director of the Child Support Agency. Those subpoena to be returned on a date to be advised.

2. In respect of the Application in a Case filed by the mother on 7 August 2008 containing 5 hand-written paragraphs of orders sought:

   a.the orders of Registrar Coutts made on 7 August 2008 be amended to restrict the leave to inspect material produced pursuant to subpoena issued pursuant to the orders of Justice Murphy made on 14 July 2008, to the legal representatives only of the father, the mother and the Independent Children's Lawyer and otherwise confirm the orders made on 7 August 2008;

   b.the Independent Children's Lawyer only be granted leave to copy documents produced pursuant to subpoena issued.

3. The Independent Children's Lawyer be granted leave to issue subpoena to the Maroochydore Contact Centre, N School and the Director-General Department of Child Safety.

IT IS NOTED that publication of this judgment under the pseudonym Eddings & Eddings is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT BRISBANE

FILE NUMBER: BRC5878 of 2008

MR EDDINGS

Applicant

And

MS EDDINGS

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. Two applications in a case were filed by the mother in these proceedings on 7 August 2008. 

2. Those applications were filed consequent upon orders made by me on 14 July 2008.  Order 6 of those orders provides:

   "Leave be granted to either party and/or the independent children's lawyer to issue subpoenae to the Nambour General Hospital and in particular the psychiatric unit of the Nambour General Hospital in respect of all treatment administered by the unit to the mother [Ms Eddings] and Queensland Police Service in respect of any investigations relating to the father [Mr Eddings], the mother [Ms Eddings] or the child [M] born […] October 1993 and/or any contact had by the Queensland Police Service with [Mr R] and/or [Mrs R] and/or the mother returnable on a date to be advised." 

3. On the return date of those subpoenae the parties appeared before Coutts R.

4. The mother raises what might conveniently be called natural justice issues with respect to that appearance. She says that, although she was present in and about the courtroom precincts, she was, in effect, not advised of those proceedings such that she was able to participate meaningfully in them.

5. In the event, it is not necessary for me to traverse further those issues because the relevant application by the mother relates to a review of an order made by Coutts R permitting inspection of the documents.

6. Mr Johnson, who appears for the father, tells me from the Bar table that neither he, nor any member of his firm, or the father himself, have inspected any such documents. 

7. As the application for review from the order of Coutts R is heard by me de novo, and the mother is today given the opportunity of presenting her case in respect of the father being permitted to inspect those documents, the matters relating to her being heard or not heard before Coutts R are not relevant.

8. One of the two Applications in a Case filed by the mother (which I have referred to in argument as being the application for four typewritten orders) has been dealt with by the making of orders which are essentially uncontroversial by reason of (a) the Independent Children's Lawyer indicating to the Court that she intended to issue many of the subpoenae which the mother seeks leave to issue; (b) the mother not pursuing par 1 of those orders and (c) par 3 of those orders essentially being in the same terms, or traversing the same matters, as the other Application in a Case with which I am about to deal.

9. There is no objection by either party to the other subpoenae intended to be issued by the mother.

10. I turn, then, to the second Application in a Case.

11. That application is in handwritten form and deals with, as I said earlier, the review of the decision of Coutts R made on 7 August 2008 insofar as those orders permit the father or his representatives to inspect documentation produced pursuant to subpoena. 

12. The mother made it clear during the course of her submissions that she had no objection to either the Court viewing those documents and/or the Independent Children's Lawyer inspecting those documents.

13. The resolution of the application depends upon two, in effect, conflicting principles.

14. There are allegations by the mother that within a history of domestic violence upon her by the father, he has a history of inappropriately using material -particularly in New Zealand. 

15. The mother submits that the father has already tried to use false allegations against her in New Zealand, that he intrudes into all aspects of her life, that he is a vindictive man and that, in effect (and to use her words) his capacity to inspect the documents produced pursuant to subpoena from the Nambour Hospital would be "just like looking into my underwear drawer".

16. As against that the following broad issues emerge, many of which are the subject of disputed facts and are likely to be the subject of further disputed facts each of which can only be resolved at a trial.

17. The parties' child M is nearly 15 years of age.  He was living with the mother. 

18. In circumstances deposed to by the mother, two people (who, on the last occasion the matter was before the Court, she told me she did not like and had suspicions about, but which nevertheless she permitted to live in her house) were involved in an incident which occurred on 26 May 2008.

19. On that day, it is common ground that the mother was taken to the psychiatric unit of the Nambour Hospital. 

20. She says that she signed a voluntary admission order on the understanding that that would mean that she would have been in the hospital for 24 hours.  As it turned out she was in the hospital for the best part of a week. 

21. In the material filed by her she includes a report from a doctor who, I gather, is a psychiatrist at that hospital who signed a termination order with respect to the mother's containment in the psychiatric unit.

22. In effect, the mother says that the doctor says, again in effect, that, psychiatrically, there was nothing wrong with her.

23. The factual circumstances as to what occurred on 26 May are confusing and the subject of competing sworn evidence already and likely to be the subject of further competing sworn evidence at a trial.

24. At the mother's request I read, as part of the evidence before me, the Child and Family Meeting Memorandum and Issues Assessment prepared in contemplation of the first day of the LAT hearing of this matter on 25 August 2008 by Ms D who is a family consultant employed by the Court. 

25. As the mother stressed in her submissions, the first paragraph on p 2 of that report says:

    "[The child M] attributed his mother's yelling to her alcohol misuse and recounted a number of stories of his mother's drinking and abusive ways, the most recent being the incident on 26 May 2008."

26. The mother points out that M’s alleged statements, although there expressed in very broad terms by Ms D, appear to be at odds with statements made to a witness whom the mother intends calling in her case whose statutory declaration is annexed to her affidavit and who is a Pastor in her church. 

27. Nevertheless, there is, on the face of it, prima facie evidence in respect of comments by M that indicate that events of 26 May, putting it in its most neutral language, were troubling to him.

28. There is no doubt (on any view of the material) that those events caused the mother's hospitalisation in the psychiatric unit at the Nambour Hospital.

29. That same Issues Assessment by Ms D  goes on to say (on p 3):

    "[The mother] alleges that the impetus of the aforementioned incident [that is, the incident on 26 May 2008] was [the father’s] aggravation at the Child Support Agency's reappraisal of his financial contribution towards [M’s] care as a result of her appeal.  [The mother] acknowledged that she does experience post-traumatic stress disorder as a result of her violent and abusive relationship with [the father] but her symptoms are situational and do not warrant her being institutionalised.  She similarly denied misusing alcohol, acknowledging social consumption." 

30. The mother herself in her interview with Ms D then, would appear to posit at least some form of mental health issues as being one of the issues which needs to be decided ultimately in arriving at orders that are in M’s best interests.

31. Significantly, as it seems to me, Ms D, in making recommendations for the future direction of this matter, says:

    "A psychiatric assessment of [the father and the mother] is required to provide the Court with sufficient information to determine whether either parent poses a risk to [M].  This report has the scope to view material from the Department of Child Safety, the Police and any other relevant medical history."

32. As a result of the orders which were, in effect, made by consent in response to the other of the mother's Applications in a Case, subpoenae will issue to the Department of Health in Queensland and to the Queensland Police Service. 

33. In respect of the former of those two organisations the mother says that she seeks a subpoena because there may well be material disclosed in respect of the father's mental health and other issues arising therefrom. 

34. In other words the mother seeks for herself (understandably and appropriately, as it seems to me in light of the issues about which I am already aware in this case) to use the subpoena process to seek information in regard to matters private to the husband relating to his psychiatric health and his health in general including, if Ms D is right about the allegations and counter‑allegations of the parties, the potential for current, and possible prior, abuse of alcohol.

35. The essential argument against the father or his representatives being able to inspect the material is that it is, in effect, an intrusion into the mother's privacy and, based on what she says is his past history, the potential for him to misuse that material. 

36. There is no doubt in my mind that a person's privacy is a consideration that a Court should take into account when assessing whether subpoenae should issue in respect of matters that might be seen as being highly personal and private. 

37. Of course that, as it were, “right to privacy” needs to be balanced against the capacity of the Court to have before it material which is likely to be directly relevant to the best interests of the child. If the Court is to have before it those documents potentially because of their relevance to central issues, there would need to be a compelling case preventing access to them by a party’s legal representatives who are charged with the duty of properly representing the interests of that party in respect of those very same central issues. 

38. The mother, in effect, acknowledges the potential relevance of those documents and the need for practitioners to view them by conceding that both the Independent Children's Lawyer and the Court should have the capacity to view the documents.

39. Any right of a party to litigation to privacy must be balanced against the capacity of a party engaged in inter-parties litigation in this Court to be fully appraised of all facts, information and data upon which a decision may well be made. 

40. It is significant, as it seems to me, that Ms D postulates the possibility, again sensibly and understandably as it respectfully seems to me, that material from the Department of Child Safety, the Police and "other relevant medical history" is highly likely to inform any psychiatric assessment that she says ought be undertaken. 

41. I would also add that it seems to me highly likely that data from those sources including "any other relevant medical history" is highly likely to inform any further s 62G report prepared by Ms D or any other expert report writer.

42. In those circumstances where matters relating to the psychiatric history of the mother and father are likely to be highly relevant issues with respect to the best interests of a nearly 15 year old child, it seems tome that both parties should have the opportunity to be fully appraised of what information might be contained in respect of those issues in documents which are likely to find their way into evidence either on their own account or alternatively as forming at least part of the foundation for further expert evidence contained in reports or otherwise by experts in the ultimate children's proceedings.

43. In balancing the considerations referred to I also take into account the fact that the Family Law Rules 2004 are also cognisant of a party's right to privacy and the need to balance the sorts of considerations that I have just outlined.

44. Rule 15.27 provides, relevantly:

    "A person who inspects or copies a document under these rules or an order must:

    a) use the document for the purpose of the case only; and

    b) not disclose the contents of the document or give a copy of it to any other person without the Court's permission."

45. The mother says that the father, by reason of his personality and his prior behaviour, is the sort of person who will not consider himself bound by that Rule.  Needless to say, if she can substantiate the abuse of the information or documents by him, the Court is likely to regard it as an extremely serious matter.

46. I have in mind that restriction and the other issues to which I have referred. Balancing the competing interests and considerations in this case results in the father’s legal representatives being at liberty to inspect material produced pursuant to subpoena, issued pursuant to my order made on 14 July 2008.

47. I have also during the course of discussions made it plain that I consider the representatives of the parties, or officers of the Court, have a duty to disclose any matters relevant to the carrying out of their duties to their client and I accept Mr Johnson’s assurances in that respect.

I certify that the preceding forty-seven (47) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Murphy

Associate: 

Date:  22 August 2008