Flanagan and Family Court of Australia

[2001] AATA 505

DECISION AND REASONS FOR DECISION [2001] AATA 505

ADMINISTRATIVE APPEALS TRIBUNAL      )

)     No  N2000/1404

GENERAL ADMINISTRATIVE DIVISION          )          

Re      JOHN  FLANAGAN

Applicant

And    FAMILY  COURT  OF  AUSTRALIA

Respondent

DECISION

Tribunal       Senior Member M D Allen

Date8 May 2001

PlaceSydney

ADMINISTRATIVE APPEALS TRIBUNAL  )         No N2000/1404
  )  
GENERAL ADMINISTRATIVE DIVISION     )

Re:     JOHN FLANAGAN       

Applicant

And:     FAMILY COURT OF
  AUSTRALIA
  Respondent

DECISION

Tribunal              Senior Member M D Allen

Date  8 May 2001

Place                   Sydney

DecisionFOR the reasons given orally at the conclusion of the hearing in this matter, the decision under review is AFFIRMED.

(Sgd)  M.D. ALLEN

.............................

Senior Member
CATCHWORDS

Freedom of Information  -  Applicant requested access to notes taken during a conference by a Family Court counsellor.  Such notes not subject to production as counsellor was an officer of the court and notes were not of an administrative nature.

Freedom of Information Act 1982

Re O'Sullivan and Family Court of Australia, 25 AAR 482

REASONS FOR DECISION

Senior Member M D Allen

1. At the conclusion of the hearing of the above matter the terms of the decision intended to be made and the reasons therefor were stated orally. After service upon the Applicant of a copy of the decision that was in fact made, the Applicant pursuant to Sub-section 43(2A) of the Administrative Appeals Tribunal Act 1975 requested the Tribunal to furnish to the Applicant a statement in writing of the reasons of the Tribunal for its decision.

1. The oral reasons for decision have been transcribed by Auscript, the Commonwealth Reporting Service.  Whereas those oral reasons may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

1. The said transcript is annexed hereunto and furnished to the Applicant and to the Respondent as it is the reasons for the Tribunal's decision.

I certify that this and the preceding page are a true copy of the decision and reasons for decision herein of:

Senior Member M D Allen

Signed:         Kwai-Ling Wong
          ..................................................................................……………………………….

Associate

Date of Hearing  8 May 2001
Date of Decision  8 May 2001

Representative for Applicant     Applicant was self-represented
Solicitor for Respondent            Ms A Nanson,
  Australian Government Solicitor's Office

DRAFT DECISION  [10.07am]

ADMINISTRATIVE APPEALS TRIBUNAL

Matter No N200/1404
By MR M.D. ALLEN, Senior Member
FLANAGAN and FAMILY COURT OF AUSTRALIA
SYDNEY, 8 MAY 2001

MR ALLEN:  In this matter the applicant pursuant to an application lodged with the Tribunal on the 31st day of August 2000 or, rather, it was lodged with the Tribunal on the 4th day of September 2000 sought review of a decision by the respondent refusing him access to notes made by a court counsellor of the Family Court for the purposes of preparing a report for that court.  It would appear from the documents before me that a Registrar of that court ordered that a counselling session be held between the applicant and the applicant's former partner and that counselling session was conducted before a counsellor, one Leisel Rothschild, on the 2nd day of May 2000.

The applicant has now requested that the copy of the notes taken by the counsellor at that counselling session be provided to him under the Freedom of Information Act 1982. The respondent has resisted production of the notes pursuant to section 5 of that Act which reads, inter alia, that:

5.For the purposes of this Act:

…

(b)the holder of a judicial office … pertaining to a court  … shall be deemed not to be a prescribed authority and shall not be included in a Department;  

… unless the document relates to matters of an administrative nature.

The counsellor's report consists of two pages of handwritten notes and I have inspected that document.  They are clearly notes of an interview with the applicant and, as stated, and indeed I was informed from the bar table, that on the basis of those notes a report was prepared for the family Court and the applicant had access to that report.  If one wants to draw an analogy it is, as I see it, between a judicial officer's bench book and the judgment or decision finally prepared.

The applicant has argued that any comments made by him to the counsellor and noted by the counsellor are matters of an administrative nature and he used the analogy of a transcript of a hearing.  Putting that to one side, however, it seems to me that the better analogy is as I said earlier between a bench book where some judicial officer has taken notes of the evidence of an applicant or plaintiff or whatever.

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It is clear that the notes taken by the counsellor were of a professional nature and although the applicant has referred to a decision in Western Australia, namely Rehman v Medical Board of Western Australia, a 1995 decision of the Western Australian Information Commissioner, I do not regard that decision as having particular application here where there is a decision of the Tribunal entirely on point.  The particular decision I refer to is Re O'Sullivan and Family Court of Australia, 25 Australian Administrative Reports 482, a decision of Senior Member Dwyer.

In particular at page 490 the learned Senior Member says of notes of a Family Court counsellor:

They relate to matters of a counselling and conciliation nature and to the welfare of two children and their relationship with their parents.  Those are not matters of an administrative nature.

The head note of the said case simply reads that:

(1)A court counsellor appointed under the Family Law Act 1975 (Cth) was an officer of the court.

(2)…

(3)The counsellor's notes were documents of a court within the meaning of s.5.

(4)Handwritten notes containing the contents of counselling sessions, or of conversations a counsellor had had with members of a family engaged in Family Court proceedings about access arrangements or the welfare of children, were not documents relating to matters of an administrative nature.

It seems to me quite clear that as a matter of comity I should follow the decision of the Senior Member.  Indeed I would say, with respect, it is a decision with which I also agree.  In those circumstances therefore the decision under review will be affirmed.

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