Fallon & Edwards
[2022] FedCFamC1F 1005
Federal Circuit and Family Court of Australia
(DIVISION 1)
Fallon & Edwards [2022] FedCFamC1F 1005
File number(s): ADC 2632 of 2022 Judgment of: MEAD J Date of judgment: 19 December 2022 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Objection to Subpoena by one of child’s psychologists – objection based on confidentiality and public interest immunity – no evidence provided to the Court to substantiate the objection – objection dismissed. Legislation: Evidence Act 1929 (SA) s 67E Division: Division 1 First Instance Number of paragraphs: 25 Date of hearing: 15 November 2022 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Howe Jenkin Counsel for the Respondent: Ms Dichiera Solicitor for the Respondent: SA Family Law Counsel for the Independent Children's Lawyer: Mr Childs Solicitor for the Independent Children's Lawyer: Legal Services Commission of South Australia Solicitor for the Intervener: Litigant in person ORDERS
ADC 2632 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR FALLON
Applicant
AND: MS EDWARDS
Respondent
MS BARRETTA
Subpoenaed Party
INDEPENDENT CHILDREN'S LAWYER
order made by:
MEAD J
DATE OF ORDER:
19 December 2022
THE COURT ORDERS THAT:
1.The objection to subpoena filed herein by Ms Barretta on 13 October 2022 be dismissed.
2.The time for Ms Barretta to comply with the subpoena issued herein on 13 October 2022 be extended to close of business on Friday, 23 December 2022.
3.That upon production of the said documents the parties' legal representatives and the Independent Children's Lawyer be at liberty to jointly request that an order be made in chambers in terms of paragraphs 24 of these reasons.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Introduction
The parties in these proceedings, Mr Fallon (the Father) and Ms Edwards (the Mother) are in dispute with respect to appropriate parenting arrangements for their children X born 2015 (7 years old) and Y born 2018 (4 years old).
Proceedings were commenced by way of the fathers Initiating Application filed 21 June 2022. In the Notice of Child Abuse Family Violence or Risk accompanying the application he alleged that both children were at risk of physical or emotional abuse from the mother and have been exposed to family violence by the mother. He further alleged the mother had a long history of mental health issues, had been detained as result of threats to kill the child Y and herself, and that she drank to excess which resulted in aggressive behaviour in the presence of and toward the children.
The father had been served with an Interim Intervention Order on 18 May 2022, having not spent time with the children since 9 May 2022. He was seeking to resume time with both children on an urgent basis, as well as extensive interim and final parenting orders.
In the mothers response filed 18 July 2022 she sought that the children live with her and that she be excused from particularising parenting orders pending receipt of the Child Impact Report and the resolution of the current police investigation. She further sought extensive injunctive orders against the father.
In the Notice of Child Abuse Family Violence or Risk accompanying her response she alleged that the father posed a risk of physical abuse, emotional/psychological abuse, sexual abuse and exposure of family violence towards both children. She further alleged that between May 2022 and June 2022 the child X had made several disclosures to her regarding allegations of abusive behaviour that occurred during times that the children were in the care of the father. These allegations had been reported to Child Abuse Report Line, South Australia Police (SAPOL) and Department for Child Protection (DCP) by her and by other agencies. She alleged reports had commenced being made to those agencies from late 2021.
Both parties deposed to the various allegations against the other of them in the affidavits accompanying each of the Initiating Application and Response.
On 1 July 2022, prior to the mother filing her response documents, a Judicial Registrar allocated the matter to the Evatt List and made extensive Orders, including for the preparation of a Child Impact Report and the appointment of an Independent Children’s Lawyer as well as s 69ZW orders directed to both SAPOL and DCP. An order was made granting the Child Court Expert access to the material produced pursuant to the s 69ZW material.
On 1 July 2022 the Court was advised by DCP that three child protection notifications had been made in relation to the children since early 2019 concerning:
·the mother’s mental health and the mother’s threats to harm herself and Y when he was a newborn;
·the father’s belittling behaviours toward X and alleged use of physical discipline; and
·the father being a perpetrator of domestic violence towards the mother.
The correspondence from DCP dated 1 July 2022 further advised that a child protection notification was receive 9 May 2022 pertaining to allegations of sexual abuse perpetrated by the father towards X, which allegations were referred to SAPOL for follow up and investigation.
A Child Impact Report dated 23 August 2022 was prepared by Court Child Expert (CCE) Ms C. In paragraphs 48-51 of that report the expert set out the following under the heading Key Consideration and Opportunities for Resolution:
48.Allegations by [Ms Edwards] of abuse perpetrated by [Mr Fallon] towards the children are highly contentious in this dispute.
49.It may assist the Court for [Mr Fallon] and [Ms Edwards] to have a formal psychiatric assessment in order to assess what impact, if any, their current mental states may have on their parenting capacity, including reflective functioning.
50.The CCE would support an order recommending that if [Mr Fallon] is to spend time with the children that it is conducted at a professional Children’s Contact Centre.
51.A family report, after receipt of a psychiatric evaluation of the parties and the commencement of any ordered supervised time (with the inclusion of extended family members) may assist the court further.
On 31 August 2022 a Senior Judicial Registrar made various procedural orders including transferring the matter to Division One of this Court. In making the order for transfer to Division One the Senior Registrar noted in paragraph one of her order that there were serious allegations of sexual abuse by the father against the child X and that the Court was informed by way of SAPOL Family Law Information release on 4 August 2022 that the father was being reported for sexual offences and that the charges related to X.
On 27 September 2022 the applicant father’s solicitors issued a subpoena to Ms Barretta of D Psychology seeking:
·Copies of all records and documents (including electronic communications and notes and records) in relations to X born 2015 including but not limited to all reports, clinical notes for all attendances, records, notes, correspondence sent or received or otherwise.
On 13 October 2022 Ms Barretta filed a Notice of Objection to that subpoena, stating in the body of the form that
·The file contains information given to me from X a minor (only 7 years of age when she first presented to me for therapy)
·The file contains highly personal and confidential information about my client’s life which could breach her privacy and ability to confide in me in future therapeutic sessions
·The client/practitioner relationship would be jeopardised
·As some of the information relations to communication received in relation to child sexual abuse in a therapeutic setting, my understanding is that is protected from disclosure in any legal proceedings because of public interest immunity.
The objection was listed for argument before me on 15 November 2022. Both parties and the Independent Children’s Lawyer were represented by Counsel. Counsel for the mother did not object to the production and inspection of the documents in the possession of Ms Barretta, provided that there were the same limitations on those processes as applied to material earlier produced pursuant to subpoena by B Health Service in relation to notes and records concerning X. Those limitations were set out as in paragraphs 11 and 13 of the order of 18 October 2022.
It was also submitted by Counsel for the mother that it may be preferable for the documents to be viewed by the Independent Children’s Lawyer in the first instance, a submission that found some support from Counsel for the Independent Children’s Lawyer. It was the position of the Independent Children’s Lawyer that in circumstances where Ms Barretta had filed no evidence to support her objection, it was hard to place any weight on her submissions, particularly in circumstances where X was not spending any time with the father and had seen more than one counsellor. He submitted that the information should be released and that the issue of public interest includes getting to the truth of matters concerning allegations of abuse litigated in this Court.
Counsel for the father submitted that material contained in Ms Barretta notes may well go to the heart of the issue of whether or not X has suffered abuse in circumstances where the father has denied the allegation emphatically and alleges that X has been “put up to” the disclosures by the mother.
Ms Lewis submitted that X has been exposed to a number of practitioners and that this practitioner in particular had not had the benefit of what other practitioners had to say in circumstances where the Court did have that information. She further submitted that the production of the material would not affect X as the production and inspection of the material does not involve its disclosure to members of the public and appropriate orders would ensure that the parties do not have copies of the documents or provide them to other persons.
As at the date of the hearing Ms Barretta had not produced the documents to the Court.
As referred to previously, Ms Barretta did not file any affidavit of evidence upon which she sought to rely to ground her objection. She referred to an “understanding” that communication received regarding child sexual abuse in a therapeutic setting is protected from disclosure in any legal setting because of public interest immunity. There is no doubt that s 67E of the Evidence Act 1929 (SA) applies in this court. That legislation is in the following terms:
67E—Certain communications to be protected by public interest immunity
(1)A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.
(2)However, the following communications are not subject to public interest immunity:
(a)a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or
(b)a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or
(c)a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.
(3)A public interest immunity arising under this section cannot be waived by—
(a) the counsellor or therapist; or
(b)a party to the protected communication; or
(c)the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.
It was submitted by the father that it is his case that the mother has contaminated evidence concerning X’s allegations both in these proceedings and in the criminal proceedings against the father.
Other than the broad statement of Ms Barretta contained in her Notice of Objection that information in her file relates to communication received from X regarding child sexual abuse in a therapeutic setting, Ms Barretta adduced no evidence as to how many times X attended upon her, when those appointments occurred, the purpose of X’s attendance upon Ms Barretta, whether the therapy was continuing, the background material or information available to her prior to meeting with X, the purpose of the therapy, or indeed any information at all which might support her contention that information contained in her files are protected from disclosure because of public interest immunity. Likewise, there was no evidence to support her assertions that X’s disclosure could be effecting her psychological wellbeing or the relationship between practitioner and patient, such that she may not trust anyone else in the future, or that if viewed publicly the information she had spoken of and the possibility of people speaking with her about those issues may result in her disengaging from therapy in the future, leading to a negative impact on her. There was no evidence adduced as to the context of the alleged disclosure.
I am not satisfied that Ms Barretta has established her objection on either the ground of public interest immunity or the ground that production of the documents will breach X’s privacy and ability to confide in her in future therapeutic sessions. There was no evidence as to whether there is intended to be a therapeutic relationship in the future.
I am not satisfied that the subpoena should be set aside.
Upon production of the documents I do however consider it appropriate to limit the order for inspection and copying of the material so produced such that the parties themselves may only inspect the material, with any copying of same to be confined to their legal representatives and the Independent Children’s Lawyer, on the basis that once the trial is completed all copies shall be destroyed.
I note that the matter is not back before the Court until 3 March 2023. Upon compliance with the subpoena I will, upon receipt in chambers of a written request of both parties’ solicitors and the Independent Children’s Lawyer, make orders in chambers specifying the terms of inspection and copying of the documents in accordance with the matters referred to in paragraph 24 of these reasons and give leave to each of the parties and the Independent Children’s Lawyer to file one affidavit only annexing any of the material so produced upon which they intend to rely on the adjourned hearing.
I certify that the preceding twenty-five (25) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Mead. Associate:
Dated: 19 December 2022
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