Goldy & Goldy (No 2) - [2011] FamCA 418

FAMILY COURT OF AUSTRALIA

GOLDY & GOLDY (NO 2)

[2011] FamCA 418

FAMILY LAW - PRACTICE AND PROCEDURE – subpoena – whether leave should be granted to issue a subpoena to the Kids Helpline – balancing of the benefit of such information with the question of public interest immunity – where confidentiality is crucial to the operation of the Kids Helpline – where it was held that the benefit of such information did not outweigh public interests in maintaining the confidentiality of the Kids Helpline – leave refused.

FAMILY LAW - PRACTICE AND PROCEDURE – application by the father seeking leave to issue subpoena to children’s psychologist – consideration of the applicability of sections 67D and 67E of the Evidence Act 1929 (SA) – where it was held that such provisions were not applicable in the circumstances – best interests of the children – leave granted.

Evidence Act 1929 (SA) ss 67D & 67E
Family Law Act 1975 (Cth)

APPLICANT:

Mr Goldy

RESPONDENT:

Ms Goldy

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER:

ADC

4823

2008

DATE DELIVERED:

31 May 2011

PLACE DELIVERED:

Adelaide

PLACE HEARD:

Adelaide

JUDGMENT OF:

Dawe J

HEARING DATE:

31 May 2011

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Ms Hurley

SOLICITOR FOR THE APPLICANT:

Sykes Bidstrup

COUNSEL FOR THE RESPONDENT:

Ms Du Barry

SOLICITOR FOR THE RESPONDENT:

Christopher Ganzis & Co

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Fuda Duncliffe

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Services Commission of South Australia

Orders

Leave is granted to the father to issue subpoenas to produce documents to:
·       Mental Health Service 1 (concerning mother’s health)
·       Psychologist, Ms D (concerning mother’s health)
·       Mr B (in relation to health of the child M)
·       Ms F (in relation to health of the child M)
·       Dr P (in relation to health of the child M)
·       Dr A (in relation to health of the child M)
·       Dr L (in relation to health of the child M)

PROVIDED THAT the subpoenas are issued and served by Friday 3 June 2011 and made returnable before a Registrar on Tuesday 14 June 2011.

Leave is granted to the father to issue a subpoena to Dr O to give evidence and produce documents at the trial PROVIDED THAT the subpoena is issued and served as soon as possible and made returnable to the first day of trial on 27 June 2011 (at which time the issues will need to be determined either at that time or after we have heard the evidence of Mr Z) with Dr O to be in attendance on the first day of trial so that the position can be explained to her and the matter dealt with either then or at a later date when the evidence has been further determined.
Counsel to confer and reach agreement about further information (if any) to be provided to Dr W (through the Independent Children’s Lawyer) and such agreed material to be made available to Dr W by 22 June 2011 and any further issues for matters that are not agreed can be raised with the Court on the first day of trial on 27 June 2011.
The parties to appoint and agree a single expert to provide valuation of Lot … T Street, Adelaide Suburb 1 in the State of South Australia at the joint cost of the parties UPON NOTING there is urgency in attending to this matter.
The parties are to file updated case outlines setting out specific orders that they seek by way of property settlement and the final orders they seek in relation to the children to be filed by 4.00 pm on 22 June 2011.

IT IS NOTED that publication of this judgment under the pseudonym Goldy & Goldy (No 2) is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 4823 of 2008

Mr Goldy

Applicant

And

Ms Goldy

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

The information upon which the subpoena to Kids Helpline is based is an intake document from Families SA in January 2009. Because of the provisions of the State legislation, the person who is the informant is not known. It is speculated that that is one of M’s counsellors, and therefore there is further speculation that Kids Helpline may have information dealing with the conversations between M and counsellors employed at Kids Helpline.
The Court needs to consider carefully both the usefulness of any information that might be obtained from Kids Helpline and the question of the public interest immunity. There is no specific legislation (Federal or State) which would deal with these particular circumstances, but the common law is significant in that 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 Helpline to the children and young people who use that service is significant.
The Court has the power to direct the issue of subpoena and the production of documents but must balance the benefit to the Court of receiving the possible evidence. In this case, however, at this stage, and without further information from any counsellor who may have been the reporter of or informant of that information, I am not satisfied that the benefit to the Court in deciding what is in the best interests of the children is outweighed by the public interests in maintaining the confidentiality of the Kids Helpline service. I am therefore, at this stage, not granting leave for the issue of a subpoena to Kids Helpline in relation to any notes (even if they are found to exist) in relation to any conversation with M.
The question of the subpoena to Dr O is a difficult matter. The orders which brought about the counselling are the orders of Justice Burr of 11 November 2010. The specific orders that were made on that occasion need to be considered carefully so that the orders for the issue of a subpoena to Dr O are considered in the right context.
Paragraph 2 of the order of 11 November 2010 provided for Mr Z to provide an updated report in relation to the general circumstances of the three children. That order then said (specifically referring to Mr Z) to consider all material on the Court file which had been filed since his last report, specifically the report of Dr W dated 18 August 2010. Paragraph 2(b) referred to observations of the father and children; and:
“(c)to make contact with, consult with and secure the input of [Dr O] in terms of the therapy and counselling of the children being undertaken by her.”
The background to the matter is that Mr Z’s report and Dr W’s report will be matters of significant evidence in the final trial of these proceedings, bearing in mind the contrasting opinions contained therein. With that knowledge, Justice Burr ordered a further report from Mr Z to include consultations with an input from Dr O in terms of the therapy and counselling of the children being undertaken by her. That needs to then be seen in context of the further orders that Justice Burr made requiring the mother to ensure that the children engage in therapy, counselling and psychological evaluation with Dr O and that the Independent Children’s Lawyer provide to Dr O copies of the Family Report and Dr W’s report.
Paragraph 7 of the orders is:
“The Independent Children’s Lawyer inquire of [Dr O] whether or not in her view the therapy, counselling and psychological evaluation should be conducted in a confidential environment or be reportable, and her response to that inquiry be advised to the Court on 6 January 2011.”
In that context, the Court was subsequently provided with a letter from the Independent Children’s Lawyer to Dr O which was dated 28 January 2011 and is endorsed as having been handed up to Justice Burr on 15 February 2011. That letter and the documents attached to it will now become Exhibit 1 before me.
In Exhibit 1 the Independent Children’s Lawyer refers to the orders made and previous correspondence and indicates that the preference of the Independent Children’s Lawyer is that:
“Your dealings remain confidential with reportable material being presented by way of the report of [Mr Z].”
The reply from Dr O of 1 February 2011 (being part of Exhibit 1) includes the following:
“I have been in touch today with [Mr Z] to discuss the matter and the request of the Court. I have advised him of any further information in my possession which may help the Court, and he will be incorporating this in his report.”
Therefore it is clear that the Independent Children’s Lawyer preferred for the counselling with Dr O to remain confidential, and in the context of these proceedings, that is clearly an appropriate attitude.
However, paragraph 8 of Justice Burr’s order of 11 November 2010 says:
“Pending aforementioned advice to be received from [Dr O], that such therapy, counselling and psychological evaluation be conducted in a confidential environment and not be reportable to the Court or any other person without order of this Court, save and except in respect of the information obtained by [Mr Z] for the preparation of his updated Family Report.” (Emphasis added)
I therefore emphasise the words including and after “save and except” in paragraph 8. This is the particular difficulty for the Court. It appears that the order was made on the basis that information will be given to Mr Z from Dr O notwithstanding that the Independent Children’s Lawyer and Dr O may have been of the view that the contact with the children was confidential.
Counsel has appropriately referred me to the provisions of the South Australian Evidence Act, and in particular sections 67D and section 67E, which by virtue of the provisions of the Judiciary Act apply to this Court. The provisions of those sections, however, rely upon the counselling being for the purposes of counselling or therapy for a victim or alleged victim of sexual abuse. It is not clear from the order of Justice Burr that that was the issue to which counselling for the three children was to be addressed. It has been highlighted that it is only M who has been alleged to have been a victim of sexual abuse in these proceedings, but the three children were referred to counselling.
I accept the evidence clearly indicates that M has at one stage alleged herself that she was the victim of sexual abuse, and it is therefore possible that the counselling, if directed towards that issue, was counselling or therapy in relation to sexual abuse. The difficulty at the moment, however, is that the information provided by Dr O to Mr Z seems to go beyond the issue of a counsellor who was providing counselling for sexual abuse. It suggests that the counselling, therapy and interaction with Dr O was other than counselling for victims of sexual abuse.
I am therefore not convinced on the material currently before the Court that the specific provisions of section 67D and section 67E of the Evidence Act apply to these particular circumstances or the evidence which Dr O may be asked to give.
When determining a solution in these matters, the best interests of the children are not the determinative factor, these being procedural matters, but it is clear from the authorities that the best interests of the children is a matter that the Court can take into account when making a decision by way of procedural directions.
I accept that it may well be significant in the future for the children to have the benefit of ongoing treatment with Dr O. However, it is not necessary that Dr O’s future treatment of the children would be compromised if she were required to give a limited amount of evidence. At this stage, therefore, I propose to grant leave to the solicitors for the father to subpoena Dr O to ensure that she is ready to give evidence before this Court on the basis that, first of all, her evidence will need to be given as to the type and nature of the counselling in order that the Court can determine whether that evidence would be admissible, taking into account the provisions of section 67D and 67E. In particular, her evidence will need to be given to establish whether in fact she was providing the type of counselling or therapy which would bring it within the provisions of those sections of the Evidence Act. Further evidence would need to be then considered as to whether Dr O gives evidence notwithstanding the issue of confidentiality. The evidence may well include the information upon which Dr O based her opinion which she then gave to Mr Z. I do that on the basis that if her opinion is in due course not established, then the opinion of Mr Z expressed in his report may be the subject of some challenge, in part, if it is based upon information which is not considered to be reliable or established.
I therefore give leave for the father, if he is proposing to seek to call the evidence of Dr O, to issue a subpoena to give evidence and produce documents to Dr O returnable for the first day of the trial (which is 27 June 2011). The various issues will need to be determined either at that time or after we have heard the evidence of Mr Z. I require Dr O to attend on the morning of 27 June so that the position can be explained to her and the matter dealt with either then or at a later date, when the evidence has been further determined.
Once the parties have looked at the subpoenaed material, they will have a few days to consider, confer and reach agreement with the Independent Children’s Lawyer so that Dr W can have the agreed material sent to him by 22 June.
If there are further issues about the matters that are not agreed, they can be raised before me on 27 June (that is the first day of the trial). Otherwise all material is here. The only other matter which is not dealt with today because of difficulties with counsel is the issue of counsel, Ms Hurley, discussing the motor vehicle accident file documents. That is to have to await Senior Counsel’s argument.

I certify that the preceding twenty-one (21) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 31 May 2011.

Associate:

Date: 9 June 2011