French and Winter
[2012] FMCAfam 256
•21 March 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| FRENCH & WINTER | [2012] FMCAfam 256 |
| FAMILY LAW – Practice and Procedure – subpoena to registered family dispute resolution practitioner – whether the family dispute resolution practitioner was conducting family dispute resolution when the mother alone attended. |
| Family Law Act 1975, ss.69ZQ, 10H(1), 10H(3), 10F, 10D(1), 10D(3)(a), 10B |
| Unitingcare – Uniform Counselling & Mediation & Harkiss and Anor (2011) 46 Fam LR 12 |
| Applicant: | MR FRENCH |
| Respondent: | MS WINTER |
| File Number: | BRC 7013 of 2010 |
| Judgment of: | Demack FM |
| Hearing date: | 3 February 2012 |
| Date of Last Submission: | 3 February 2012 |
| Delivered at: | Brisbane |
| Delivered on: | 21 March 2012 |
REPRESENTATION
| Counsel for the Applicant: | Mr Hamwood |
| Solicitors for the Applicant: | K L King & Associates |
| Solicitors for the Respondent: | Charles Cooper Lawyers |
ORDERS
That the subpoena to Dr P, [organisation omitted] dated 5 December 2011 be discharged.
That the file be returned to Dr P.
IT IS NOTED that publication of this judgment under the pseudonym French & Winter is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT BRISBANE |
BRC 7013 of 2010
| MR FRENCH |
Applicant
And
| MS WINTER |
Respondent
REASONS FOR JUDGMENT
On Friday 12 August 2011, the parties had a final hearing with respect to parenting arrangements for their children [X], born [in] 2001 and [Y], born [in] 2002.
At the conclusion of the evidence and before going into submissions I (firmly) invited the parties to consider their positions, discuss matters with their legal representatives and make another attempt at agreeing to orders, albeit potentially ones of an interim nature.
Agreement did not occur, and interim orders were made on 18 August 2011 providing for the parents to have equal shared parental responsibility, for the children to live with the mother and to spend time with the father in a manner which increased the time after a two week period and where initially the arrangements for the two children differed by way of [Y]’s time being shorter than [X]’s.
No order was made by consent or otherwise for the parties to participate in any family counselling, mediation or family dispute resolution.
The making of interim orders following a process that all considered to be the trial in the matter effectively means that the trial was adjourned part-heard.
The parties were granted liberty to apply and the proceedings adjourned to 24 November 2011.
On 24 November 2011 directions were made for the purposes of having an interim hearing on 15 December 2011. The directions relevantly included the filing of further affidavits by the father on 29 November 2011 and the mother on 3 December 2011.
In the mother’s affidavit filed 2 December 2011, she deposed at paragraph 9 thus:
I have also engaged with Dr P, a psychologist from the [organisation omitted] to assist with focussing on the children and their needs. I have a further appointment with her on the 19th December, 2011 at 10.00am.
On 5 December 2011, the solicitors for the father filed a subpoena directed to Dr P, [organisation omitted], seeking the production of documents specified as:
…
2. All and any documents in relation to MS WINTER born [in] 1971 including but not limited to file notes, medical records, reports etc.
On 19 December 2011, Dr P, psychologist filed a Notice of Objection – Subpoena. Dr P writes on the prescribed form the reason she objects to the production of some or all of the documents to the court as:
My registration is as a ‘mediator’ and ‘Family Dispute Practitioner’ & in accordance with standard confidentiality provisions of the National Standards any materials are not subject to subpoena
Further to her Notice of Objection – Subpoena, Dr P wrote to my Chambers via letter dated and faxed on 23 January 2012, relevantly stating:
…
To reiterate, as a mediator and Family Dispute Resolution Practitioner, my notes are not admissible under sections 10H and 10J of the Family Law Act. However, should they be deemed admissible, I will fax them through upon request.
The objection came before me on 3 February 2012. I heard argument on that day. The father was represented by his Counsel. The mother was represented by her new solicitor. Dr P appeared on her own behalf by telephone.
At the conclusion of argument, I advised the parties that I felt unable to properly determine the limited issue without having the opportunity to see the material named in the subpoena to understand whether the basis for objection was made out. I proposed that Dr P produce the material, that I review it in chambers and determine the issue giving reasons. The parties and Dr P indicated that they were content with that process.
The material has subsequently been produced and these are my reasons. I note that my duties and powers for determining this issue in this manner in chambers are the same as had I been in Court[1].
[1] Section 69ZQ of the Family Law Act 1975
The father says the documents should be produced
Counsel for the father was shown the written Notice of Objection – Subpoena by Dr P. As a result, his submissions were tailored to the issues surrounding the confidentiality of communications in family dispute resolution. No dispute was taken with Dr P’s statement that she was registered as a family dispute resolution practitioner. The submissions on behalf of the father were to the effect that the confidentiality of communications with a family dispute resolution practitioner only arises when the family dispute resolution practitioner is “conducting family dispute resolution” (see section 10H(1) of the Family Law Act 1975 (“the Act”)).
Family dispute resolution is defined in section 10F of the Act thus:
Family dispute resolution is a process (other than a judicial process):
(a) in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and
(b) in which the practitioner is independent of all of the parties involved in the process.
The father relies upon what the mother states in her affidavit (set out above) as to the stated purpose for the attendance upon Dr P to assist the mother with “focussing on the children and their needs”.
It is submitted that the purpose the mother describes is quite different to and separate from helping the parents “to resolve some or all their disputes[2]”. The first is to affect change in a person, the latter is focussed on achieving an outcome from no less than two parties in conflict (or at least initially positional).
[2] section 10F of the Act
Dr P says the documents should not be produced to the parties
Dr P told the court that she no longer does any work in a private, therapeutic capacity; rather she only takes work in her capacity as a mediator and family dispute resolution practitioner. Therefore, she says, she saw the mother in her capacity as a family dispute resolution practitioner, and as a result, her contact with the mother must necessarily have been for family dispute resolution.
Dr P considered that she saw the mother for “ADR[3] support” and that was the purpose of the referral. When asked as to whether the purpose of her contact with the mother may not have been the same as the then interaction with the mother, she responded that she had one introductory session only with the mother, and that, in part, she spoke with the mother about “how to develop a parenting alliance” and further that her work in alternative dispute resolution necessarily includes the best needs of the children.
[3] An acronym for Alternate or Alternative Dispute Resolution
Dr P was at pains to point out that she was not a lawyer and was not able to make submissions on any legal matters that may arise. Further she was content to abide by the court’s orders.
The mother says the documents should not be produced
It was submitted on behalf of the mother that what happened when the mother attended upon Dr P was clearly family dispute resolution and therefore was exempt from production.
Are there any other bases for claiming privilege?
Family counselling by an accredited family counsellor is confidential (per section 10D(1) of the Act) unless, relevantly here, the person gives consent (section 10D(3)(a) of the Act) and the family counsellor chooses to disclose[4]. Section 10B of the Act states:
[4] see the later discussion about family counselling arising from Coleman J’s decision in Unitingcare – Uniform Counselling & Mediation & Harkiss and Anor (2011) 46 Fam LR 12
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.
Dr P has not advised the court that she is an accredited family counsellor, and it is only the relevant counselling done by an accredited counsellor that is covered by this section of the Act.
So despite the possibility that the mother’s presentation at Dr P may fit within the description of having been helped to deal with issues either of a personal or interpersonal nature or to do with the care of children, I do not have evidence to demonstrate that the counselling (if that is what is was) was undertaken by a duly accredited family counsellor.
Does family dispute resolution have to include more than one person?
In this case, only one parent attended with the registered family dispute resolution practitioner. In such a circumstance can the family dispute resolution practitioner be seen to be helping “people… to resolve some or all of their disputes with each other” [emphasis added].
Can a dispute between two people be resolved or at least assisted in the direction of resolution by only one of them attending for family dispute resolution? It would seem a more difficult path to follow and one which would necessarily be occurring outside the family dispute resolution practitioner’s presence via manipulation of an outcome through the person’s new found skills or knowledge and/or where the sole participant would have to take the role of capitulation (there being no other participant who may provide any compromise). Further it would seem fair to consider that dispute resolution may be a process with a number of parts and that early contact or intervention with one person only may be a necessary precursor to engagement with the other party or any joint sessions.
Here, of course, the mother does not say in her affidavit that she attended upon Dr P to focus on the resolution process but rather counselling processes. Perhaps though counselling (if it had proceeded for more than one introductory session) and was with a counsellor who has skills or specialisation in that area[5], the mother’s position, attitudes, parenting or thought processes (for example, only) may have changed such that a resolution of the parental dispute might flow or be produced or affected. If that was the case, would that counselling of the mother only then have been capable of the classification of family dispute resolution? Perhaps.
[5] I do not suggest that Dr P lacks these skills. She was plain in her position that she sees clients for the purposes of alternative dispute resolution or family dispute resolution only.
Here, though, it is not the mother’s case that such an intervention was her intention, regardless of what Dr P understood to be the purpose of the referral (from the mother’s then solicitor). The fact that Dr P limits her practice to mediation and family dispute resolution does not necessarily prevent the presentation of a client seeking assistance of a different kind. What the mother sought was counselling. What Dr P intended to provide might well have been family dispute resolution.
The mother’s affidavit speaks of “have[ing] also engaged” with Dr P. This is expressed in the past tense indicating that the mother had already seen Dr P. Yet the mother’s affidavit also refers to a further appointment and we know from Dr P that the mother only saw her once. Had the mother already been to Dr P at the time of deposing to her affidavit? Her affidavit reads as though she had. And the mother’s view then of what happened in that interaction was that it was “to assist [her] with focussing on the children and their needs”. It seems to me then, that whatever Dr P understood the interaction to be (and in her view it could only have been for family dispute resolution) that is not what the mother understood the interaction to have been.
What does a review Dr P’s file tell me?
Was the interaction between Dr P and the mother family dispute resolution or counselling or something else?
There is a form headed “Family Dispute Services Intake Form”. I do not know who has filled it in. It includes the mother’s name and that she has not “seen Dr P [Dr P] before”. Where the options to circle include “Initial Information Meeting for Mediation or Consultation” it is “Consultation” which is circled. The “Other Party’s Name” is blank and “No” is circled for the option “Have they been in”.
A “Private Consent Form” was signed by the mother on 8 August 2011, as was the “Authority for the Release of Information”. A blank “AGREEMENT TO MEDIATE” form is included in the slim file. The file otherwise contains handwritten notes contained on three pages. For reasons that will become clear, it does not seem to me to be proper to express in these reasons anything that discloses the content of the communications between Dr P and the mother.
I note that the handwritten notes (presumably by Dr P) are undated. The only dated documents are those by the mother. I observe that 8 August 2011 was the Monday of the week that the trial was heard on Friday in August 2011.
Looking back at the mother’s affidavit filed on 2 December 2011, which, as I understand matters, was the source of the father’s knowledge of the mother’s attendance upon Dr P. It seems to me that the mother appeared to be timing her attendance on Dr P as being since the interim orders made following the trial. Here are the paragraphs which lead up to paragraph 9:
4. I say that since the Interim Consent Orders of the 18th August, 2011 I have done my best at facilitating the children [Y] and [X] in having a meaningful relationship with their Father.
5. I believe that notwithstanding the previous issues I have moved a long way since the 18th August, 2011 in encouraging and facilitating the relationship with the Father. I am not naïve enough to suggest that this could be done overnight and I see that there is still a lot of work to be done between the Father and I, with [Y] and [X].
6. I note the comments of the Father in his extensive affidavit and as well as responding to these specific issues I have included in my affidavit, purely as a means to ensure the Court is fully informed, other issues that have arisen between the Father and I in respect to our parenting.
7. I am working through these issues which really still related to the Father and I communicating and I truly believe that the existing arrangement between us can work with both the Father and i [sic] maintaining a meaningful relationship with the children.
8. I have completed a parenting course through [organisation omitted] and a certificate of completion dated the 19th September, 2011 is attached hereto and marked Annexure [omitted].
Then the referred-to paragraph states:
9. I have also engaged with Dr P, a psychologist from the [organisation omitted] to assist with focussing on the children and their needs. I have a further appointment with her on the 19th December, 2011 at 10.00am.
And it is followed by references to the father’s material and other matters:
10. The Applicants [sic] Father’s affidavit of the 23rd November, 2011 states that I have ‘generally acted in accordance’ with the Orders by delivering the children to him. I say that I have done my utmost to act in accordance with the Orders and the Fathers [sic] time with [Y] and [X] has taken place.
There are no entries in the file produced by Dr P to chambers that demonstrates any contact between the mother and Dr P since the interim orders of 18 August 2011.
It would seem less likely that the mother was seeking to embark upon a one-sided family dispute resolution process four days before a final hearing at a time when trial material was filed, and both parties were legally represented. It seems more likely than not that the mother’s intention was as she stated, counselling and not family dispute resolution.
But to whom does the confidentiality attach?
It is the family dispute resolution practitioner who is to not disclose communications made to her while the practitioner is conducting family dispute resolution, subject to requirement or authorisation as per section 10H(1) of the Act. One such authorisation is contained in section 10H(3) where:
A family dispute resolution practitioner may disclose a communication if consent to the disclosures is given by:
(a) If the person who made the communication is 18 or over -- that person [emphasis added]
…
In Unitingcare – Uniform Counselling & Mediation & Harkiss and Anor (2011) 46 Fam LR 12, Coleman J (sitting in appeal) looked at the provisions related to family counselling as opposed to those here to do with family dispute resolution. For present purposes, I note that the relevant sections of provisions of “Part II – Division 3 – Family dispute resolution” are in the same terms as “Part II – Division 2 – Family counselling”.
I consider the following sections of His Honour’s judgment relevant to the considerations before me:
36. Section 10D(1) prohibits disclosure by a family counsellor of communications made to him or her in the course of “family counselling, unless the disclosure is required or authorised by this section”. The clear intention of s 10D, not expressly or impliedly contradicted by any provision of the section to which this Court has been referred, is that if, and only if a provision of s 10D of the Act is enlivened can, or must, communications made to a family counsellor in the course of family counselling be disclosed. The REM[6] is consistent with so concluding.
37. The terms of s 10D(1) raise a significant obstacle to acceptance of Counsel for the ICL’s contention that other provisions of the Act empowered the learned Federal Magistrate to make the order he did on 26 May 2011 with respect to the subpoena directed to Unifam. It is difficult to accept that, unless “authorised” pursuant to the provisions of s 10D, or being communications falling within s 10E(2), communications made to a family counsellor during the course of family counselling can be disclosed. Section 10D can thus be suggested to “cover the field” in relation to disclosures of communications made to a family counsellor in the course of family counselling.
38. Section 10D(2) obliges a family counsellor to disclose communications in the circumstances there described. Such disclosures are of the kind referred to in s 10D(1) as “required”. Section 10D(4) and 10D(5) refer to disclosures which are described as being “authorised” in s 10D(1).
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.
[6] The Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 [my footnote, not Coleman J’s].
Of course family counselling and family dispute resolution are different processes with different objectives. Family dispute resolution is a process that is directed to or for the purpose of resolving disputes. That difference though, does not take away the notion that confidentiality can only be waived with the consent of the party (or parties) coupled with the consent of the family dispute resolution practitioner. Following Coleman J’s reasoning in Unitingcare, it seems to me that a family dispute resolution practitioner is not obliged to disclose the material.
Here the family dispute resolution practitioner through her objection makes it plain that she does not consent. Her willingness to abide by the court’s decision does not negate her expressed lack of consent.
In the event that I am right in applying Coleman J’s views about the confidentiality of family counselling to the present case of family dispute resolution, it seems to me that the view of the family dispute resolution practitioner has strong relevance. She may disclose communications if the mother consents but she is not compelled to.
Was it counselling or family dispute resolution?
The mother had one session with Dr P. The father was not invited at that juncture or subsequently. That adds weight to the mother’s view that she went for counselling but does not necessarily affect Dr P’s view of what her role was. For the reasons given earlier in this decision in terms of the breadth of process which may be undertaken in a family dispute resolution process when coupled with Dr P’s clear view of her role, the mother’s view of her attendance upon Dr P is of interest, but not determinative in deciding the issue of privilege. It seems to me that the fact that the Act provides the discretion to the family counsellor or family dispute resolution practitioner (as the case may be) that counsellor/practitioner’s position is important.
Perhaps Dr P and the mother were at cross-purposes. However, there is no real contest that Dr P considered that she was engaging in family dispute resolution, and to that end, had seen the mother for one introductory session only.
It seems to me that in all of the circumstances of this case, I should properly consider the interaction between the mother and Dr P to have been family dispute resolution.
Further, it seems to me that the communications received during the “process” commence at the first engagement or interaction. The fact that the process is aborted, halted, or misconceived does not provide an exemption to the prohibition of disclosure of the communications made during the process.
As Dr P does not consent to disclosing the communications between herself and the mother, it seems to me that the material may not be produced pursuant to subpoena.
I note that in any event my careful perusal of Dr P’s file did not reveal any date on the notes of her one session with the mother. The only dates on the file are contained within the two signed form that are signed by the mother. They are both dated 8 August 2011. To be plain, there is no record of any attendance of the mother upon Dr P after the interim orders were made following the trial.
I am conscious of the fact that these reasons reveal a little of the content of the file that Dr P sent to the court for my perusal in chambers. I have not revealed anymore than I considered necessary for the parties and Dr P to understand my reasons.
I certify that the preceding fifty-two (52) paragraphs are a true copy of the reasons for judgment of Demack FM
Date: 21 March 2012
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