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 | of | 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…
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- AGLC
- Goldy & Goldy (No 2) [2011] FamCA 418
- Case
- [2011] FamCA 418
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the Court were whether leave should be granted to issue subpoenas to the Kids Helpline, considering the public interest in maintaining its confidentiality, and whether leave should be granted to issue a subpoena to the children's psychologist, Dr O. This latter issue involved an examination of the applicability of sections 67D and 67E of the *Evidence Act 1929* (SA) to the circumstances, and how the best interests of the children should be considered in procedural matters.
Regarding the subpoena to the Kids Helpline, the Court held that the benefit of the information sought did not outweigh the public interest in maintaining the confidentiality crucial to the operation of the Kids Helpline, and therefore refused leave. In relation to Dr O, the Court considered previous orders that counselling and psychological evaluations be conducted confidentially. While acknowledging the potential relevance of sections 67D and 67E of the *Evidence Act 1929* (SA) concerning victims of sexual abuse, the Court found it unclear if the counselling provided by Dr O fell within these provisions, as it appeared to extend beyond issues of sexual abuse. Despite the best interests of the children not being the determinative factor for procedural matters, the Court considered them as a relevant factor. The Court granted leave for the father to subpoena Dr O, requiring her to give evidence regarding the nature of the counselling provided, to enable the Court to determine its admissibility under the *Evidence Act* and to address issues of confidentiality. The Court noted that the reliability of the independent children's lawyer's report might be challenged if based on information not considered established.
The Court made several orders, including granting leave for the father to issue subpoenas to various health services and individuals concerning the mother's and child M's health, with specific return dates. Leave was also granted to subpoena Dr O to give evidence and produce documents at trial, with directions for her attendance and the determination of her evidence. Further directions were given regarding the provision of information to the Independent Children's Lawyer and the filing of updated case outlines. The parties were also ordered to appoint and agree on a single expert for property valuation.
Orders
Orders of the court
1.
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.
2.
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.
3.
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.
4.
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.
5.
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.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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.