Grant and Andrews and Anor
[2018] FamCA 901
•6 November 2018
FAMILY COURT OF AUSTRALIA
| GRANT & ANDREWS AND ANOR | [2018] FamCA 901 |
| FAMILY LAW – PRACTICE AND PROCEDURE – where the mother has subpoenaed medical and psychological counselling records – where the records pertain to the father, the father’s wife and the child – where the father and his wife object to inspection – where medical professionals object to inspection –– where the subpoenaed material may be relied upon for a Rice & Asplund hearing – where the mother’s evidence must be taken at its highest – where orders are made for the Independent Children’s Lawyer to have first right of access – where the Independent Children’s Lawyer can relist the matter to prevent access by the parties or their legal representatives. |
| Family Law Act 1975 (Cth) Family Law Rules 2004 (Cth) Evidence Act 1995 (NSW) Judiciary Act 1903 (Cth) United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, UNTS 1557 (entered into force 2 September 1990) art 16. |
| Andrews & Grant (No.2) [2015] FCCA 953 Walter & Walter [2016] FamCAFC 56 |
| APPLICANT: | Ms Grant |
| RESPONDENT: | Mr Andrews |
| INTERESTED PERSON: | Ms Digby |
| INDEPENDENT CHILDREN’S LAWYER: | Independent Children's Lawyer |
| FILE NUMBER: | SYC | 3007 | of | 2009 |
| DATE DELIVERED: | 6 November 2018 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Rees J |
| HEARING DATE: | 24 October 2018 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Levy |
| SOLICITOR FOR THE APPLICANT: | York Law |
| SOLICITOR FOR THE RESPONDENT: | Clinch Long Woodbridge Lawyers |
| COUNSEL FOR THE INTERESTED PERSON: | Mr O’Reilly |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Brian Samuel & Associates |
Orders
IT IS ORDERED
That the objection to inspection of documents produced on subpoena by B School is dismissed.
That the objection to inspection of documents produced on subpoena by Ms C is upheld.
That the objection to inspection of documents produced on subpoena by Dr D is dismissed in part. Inspection of documents produced pursuant to paragraphs 4, 5 and 6 of the subpoena is allowed.
That the objection to inspection of documents produced on subpoena by Mr E is upheld.
That the objection to inspection of documents produced on subpoena by Dr F is dismissed in part. Inspection is permitted of documents created after 1 January 2016.
That the objection to inspection of documents produced on subpoena by Dr G is dismissed in part. Inspection of documents produced pursuant to paragraphs 4 and 5 is allowed.
That the objection to inspection of documents produced on subpoena by the Department of Human Services is upheld.
That the objection to inspection of documents produced on subpoena by H Hospital is dismissed in part. Inspection of documents is allowed in relation only to documents relating to any admission of Ms Digby to the hospital after 1 January 2016.
That in relation to all documents in relation to which inspection is permitted, such documents may only be inspected by the Independent Children’s Lawyer (“ICL”) until 12 November 2018.
That leave is granted to the ICL to apply on short notice by arrangement with the associate to the Honourable Justice Rees if the ICL determines that inspection of any document by any party is inappropriate.
Subject to Order 10, after 12 November 2018, the documents may be inspected by the legal representatives of the mother only, and by the father and his legal representatives.
No document is to be shown to the mother, nor the contents of any documents disclosed to her, without the leave of the Court first obtained.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Grant & Andrews and Anor has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT SYDNEY |
FILE NUMBER: SYC 3007 of 2009
| Ms Grant |
Applicant
And
| Mr Andrews |
Respondent
And
| Ms Digby |
Interested Person
REASONS FOR JUDGMENT
Ms Grant (“the mother”) and Mr Andrews (“the father”) are the parents of X born in 2007. The child lives with the father and spends time with the mother.
Ms Digby is the partner of the father. They married in 2010.
The mother has issued subpoenas to a range of people and institutions for the production of documents, and objections have been filed in relation to the inspection of those documents. The matter comes before me to rule on those objections.
It is necessary to set out the history of the proceedings in order to put the objections in context.
HISTORY
The parents separated in April 2008 and parenting proceedings were filed by the father in May 2009 when the child was not yet two years old.
In March 2011, final orders were made by consent, providing for equal shared parental responsibility, the child to live with the mother and spend time with the father.
On 11 April 2013 the Federal Circuit Court of Australia heard the father’s Application – Contravention and varied the consent orders to define the child’s time with the father.
On 19 November 2013, the father filed an application seeking shared parental responsibility and equal shared time with the child.
On 18 February 2015, the mother brought an Application in a Case seeking to reopen the proceedings and adduce further evidence. She sought, inter alia, an order that the father direct Dr D (a therapist nominated by the Court) to speak to the mother and keep her informed about the child’s therapy. That application was dismissed. In her reasons for judgment delivered on 17 April 2015, in relation to the application to re-open, Judge Sexton set out a useful history of the proceedings which I will not repeat here.
On 17 April 2015, after a defended hearing of some five days, Judge Sexton delivered reasons and made orders which provided for the child to live with the father and spend time with the mother each fortnight from Friday afternoon until Monday morning and for half of each school holiday period. The father was given sole parental responsibility for decisions about the child.
No appeal was lodged in relation to those orders.
On 28 May 2015, the mother filed an Application-Contravention which was heard on 29 May 2015 and withdrawn on the father’s acknowledgement of breaches and assurances as to compliance with existing orders.
On 22 September 2015 the mother filed an Application-Contravention.
On 4 December 2015 the mother filed an Application in a Case and a further Application-Contravention.
Those applications were heard over three days by Judge Brewster who delivered reasons on 14 July 2016 and varied the orders of 17 April 2015.
On 24 August 2016 the mother filed a further Application-Contravention. She immediately sought to withdraw that application and did not attend on the return date. Costs were reserved.
On 15 December 2017 the mother filed an Initiating Application and an Application in a Case seeking to revisit the parenting arrangements.
On 11 January 2018 the mother filed a number of subpoenas.
On 26 February 2018 the father filed a Response seeking to have the mother’s applications dismissed. Objections to the subpoenas issue by the mother were determined by a Registrar on 29 March 2018. Certain objections were upheld.
On 5 April 2018 the mother filed an application to review the decision of the Registrar.
On 13 April 2018, Senior Registrar Campbell upheld the objections to the remaining subpoenas and dismissed the mother’s application to review the decision of the Registrar and struck out the mother’s affidavit as “scandalous”. Costs were reserved and the parties ordered to file written submissions.
An Independent Children’s Lawyer (“ICL”) was appointed.
On 20 April 2018 the mother filed an application to review the decision of the Senior Registrar.
On 7 May 2018 the father filed an Application in a Case seeking to have the threshold Rice & Asplund issue determined.
The parties agreed that it was necessary to have the issue of the objections to the subpoenas determined before the threshold issue could be heard and thus the issue of the objections came before me on 24 October 2018.
THE LAW
The subpoenas in question were issued by the mother in aid of her prosecuting her application to proceed to reopen the parenting proceedings and of her defence to the father’s application for summary dismissal.
The principle known as the “rule” in Rice & Asplund is well known and has been enunciated by the Full Court in decisions such as Marsden & Winch (2009) 42 FamLR 1.
The principles to be applied in applications for summary dismissal were stated by Kirby J. in Lindon v The Commonwealth of Australia No (2) (1996) 136 ALR 251 in the following terms:
The approach to be taken by the Court to the Commonwealth's application for summary relief is not in doubt:
1. It is a serious matter to deprive a person of access to the courts of law for it is there that the rule of law is upheld, including against Government and other powerful interests. This is why relief, whether under O 26 r 18 or in the inherent jurisdiction of the Court, is rarely and sparingly provided (21);
2. To secure such relief, the party seeking it must show that it is clear, on the face of the opponent's documents, that the opponent lacks a reasonable cause of action (22) or is advancing a claim that is clearly frivolous or vexatious (23);
3. An opinion of the Court that a case appears weak and such that it is unlikely to succeed is not, alone, sufficient to warrant summary termination (24). Even a weak case is entitled to the time of a court. Experience teaches that the concentration of attention, elaborated evidence and argument and extended time for reflection will sometimes turn an apparently unpromising cause into a successful judgment;
Thus, in deciding an application for summary dismissal, a Court must take the evidence of the applicant at its highest.
Successive Full Courts have applied the same principles to applications pursuant to the principle in Rice & Asplund. For example, in Walter & Walter [2016] FamCAFC 56, the Full Court held:
Where the question of whether a sufficient change in circumstances has occurred is to be determined as a matter preliminary to the hearing of the application, it is accepted that the applicant’s evidence should be taken at its highest.
Thus both applications are dealt with on the basis that the evidence of the applicant is to be taken at its highest and is accepted for the purpose of that application.
In these reasons, the application for summary dismissal and the preliminary determination pursuant to the principle in Rice & Asplund are referred to, collectively, as “the proceedings”.
I turn now to the bases for objection to inspection of material produced on subpoena.
In Attorney General for the State of New South Wales v Chidgey (2008) 182 A Crim R 536, the Court of Criminal Appeal held:
The correct test
[64] The test for determining whether a party is required to produce documents pursuant to a subpoena was stated by Simpson J (Spigelman CJ and Studdert J agreeing) in Regina v Saleam [1999] NSWCCA 86 at [11], in the following terms:
“The principles governing applications [for an order that documents not be produced] are no different from those governing applications for access to documents produced in answer to a subpoena. Before access is granted (or an order to produce made) the applicant must (i) identify a legitimate forensic purpose for which access is sought; and (ii) establish that it is ‘on the cards’ that the documents will materially assist his case. So much was established in earlier proceedings brought by this applicant: R v Saleam (1989) 16 NSWLR 14, per Hunt CJ at CL; see also R v Ali Tastan (1994) 75 A Crim R 498 per Barr AJ, as he then was.”
I propose to deal with each subpoena in the order in which the matter was argued, noting that this determination relates only to the inspection of documents for the purpose of the proceedings. This determination does not prevent the making of a further application in other circumstances.
I will deal separately with the application by the ICL for first access to the documents and the application of the both the ICL and the father that inspection be limited, pending further order, to the legal representatives.
Each party has filed an affidavit of evidence in relation to this aspect of the matter and both have filed written submissions.
The father has filed an objection in relation to each subpoena.
Ms Digby has filed objections in relation to subpoenas to Dr F, H Hospital, Dr G and the Department of Human Services.
Dr F has filed an objection to the subpoena of her records and documents relating to Ms Digby.
Ms C has sent a letter objecting to inspection of the records produced by her which I will treat as an objection.
SUBPOENA TO B SCHOOL
The mother in her affidavit asserts that:
· the father caused the school to remove the mother from the school’s contact list;
· the father has prevented her from attending at the school or communicating with the school;
· the father failed to provide her with relevant school reports including NAPLAN and ICAS results;
· the father failed to keep her informed of the child’s activities at school;
· the father did not allow her to attend Mother’s Day event prior to 2018;
· the father does not tell her what homework the child has;
· on rare occasions the child brings homework to her home which is overdue;
· the father refuses to discuss homework with her and does not answer her emails;
· the father does not ensure that the child completes her homework;
· the father expects the child to complete all her homework during the time she spends with the mother (this allegation is somewhat contrary to her earlier allegations);
· the father does not inform her of any issues that arise at school.
For the purpose of the proceedings, that evidence is accepted.
However, I accept that it is “on the cards”, to use the language in Regina v Saleam [1999] NSWCCA 56 that documents held by the school will materially assist her case and I dismiss the objection to the subpoena.
SUBPOENA TO MS C
Ms C is a counsellor who saw the child.
The orders of Sexton J required the father to facilitate the child’s attendance on Dr D, or a person recommended by Dr D, for therapy. Dr D referred the child to Ms C.
The mother deposed that:
· Ms C ignored the mother’s request for a progress report;
· Ms C cancelled a proposed meeting with the mother;
· the father refused to provide the mother with any information about the progress of the child’s counselling;
· the child did not like seeing Ms C;
· the child told Ms C that she wanted to live with the mother.
For the purpose of the proceedings, that evidence is accepted.
Ms C in her letter which became Exhibit 3 stated:
My patient came to me following a high conflict, bitter dispute between her parents. Establishing a therapeutic relationship was difficult and entailed a commitment to providing a safe space in which she could express and work through her feelings without fear of repercussion. Although she is no longer my patient I am concerned that disclosure of the file notes and emails will jeopardise the gains she made in therapy as well as undermining her ability to trust professionals should she require treatment in the future. I understand that my objection is based on therapeutic considerations which differ from legal considerations.
The confidentiality of a therapeutic relationship between a child and a counsellor is a serious consideration. The consideration is made more serious if there is a concern that real harm could be done to the child. According to the mother, this child has already expressed her unwillingness to engage in therapy with Ms C.
Section 43 of the Family Law Act1975 (Cth) specifically requires that the Court protect the rights of a child and those rights include the right to privacy referred to in Article 16 of the United Nations Convention on the Rights of the Child. This is particularly so, when, as here, undertakings as to privacy have been given to the child by the therapist.
For the purpose of the proceedings, I uphold Ms C’s objection.
SUBPOENA TO DR D
The mother deposed:
· That the child saw Dr D on one or two occasions after the final orders in 2015;
· Dr D is the therapist for the father and Ms Digby;
· Dr D did not think it was appropriate that she treat the child and referred her to Ms C;
· The father took the child to see Dr D in or about December 2017 and the child told Dr D that she wanted to live with her mother.
For the purpose of the proceedings, that evidence is accepted.
Similar considerations to those discussed above in relation to Ms C apply to the child’s communications with Dr D.
In so far as the subpoena requires production of correspondence between Dr D and any medical practitioner in relation to the child, and correspondence between Dr D and the father and Ms Digby, those documents may assist the mother and the objection to that extent is dismissed.
SUBPOENA TO MR E
Mr E is the father’s psychologist.
The mother deposed:
· between October and December 2017, two women told the mother that the father lies to Mr E;
· one of those women told the mother that the father, in a conversation, said that certain matters were not Mr E’s business;
· the mother is concerned that the father does not tell Mr E about important aspects of his behaviour, his relationship with Ms Digby, whether he spends time with his children of another relationship.
Those assertions have no relevance to the issues to be determined in the proceedings.
The objection is upheld.
SUBPOENA TO DR F
Dr F is Ms Digby’s psychologist.
The mother deposed:
· Ms Digby’s mental health issues and suicidal ideation were a matter of evidence before Judge Sexton;
· the fact that Ms Digby had been admitted to rehabilitation in relation to abuse of alcohol and prescription drugs on two occasions was before Judge Sexton;
· the child has told the mother that Ms Digby spends all day in bed;
· in 2017 the child told the mother that she and the father had “caught” Ms Digby at work with a bottle of wine in her office;
· the child told the mother that both the father and Ms Digby are drinking every night;
· the child told the mother that Ms Digby has prescription drugs in her room and the mother is concerned that Ms Digby is overusing prescription drugs;
· another woman told the mother of a conversation with the father in October/November 2017 where the father expressed concerns that Ms Digby was suicidal;
· that Ms Digby has told the father that she cannot handle the child and he must come home;
· that Ms Digby walks the child to the train and the child catches a train to school.
For the purpose of the proceedings, that evidence is accepted.
The subpoena seeks production of material generated after 11 January 2018.
Having regard to the history of the proceedings and, in particular the extent to which Ms Digby’s mental health and substance abuse were issues before Judge Sexton, I accept that the material is relevant and “it is on the cards” that the material could assist the mother.
SUBPOENA TO DR G
Dr G is the general practitioner for the child and the father and also for Ms Digby.
In relation to the child, the mother deposed:
· that the father has not provided the mother with information about the child’s medical health;
· that the mother disputed a diagnosis of Dr G in relation to the cause of bites suffered by the child;
· that Dr G did not return her calls about his diagnosis;
· that the father has not informed the mother about medicine prescribed for the child by Dr G and that he did not return her calls in which she sought “a bit of context” for the prescription.
For the purpose of the proceedings, that evidence is accepted.
In relation to the father’s medical records, the mother deposed that a woman told her that the father gave her a sexually transmitted disease.
That evidence is not relevant to the proceedings. It is difficult to foresee how the father’s medical records could be relevant in the proceedings.
The objection in relation to the records relating to the father is upheld.
In relation to Ms Digby, the mother deposed that Dr G is her general practitioner. It is difficult to foresee how her general practitioner’s medical records could be relevant in the proceedings.
The objection in relation to the records relating to Ms Digby is upheld.
The child’s medical records are in a different category. It is “on the cards” that material held by Dr G might assist the mother’s case. The records might be relevant to a fact in issue being the mother’s assertion that the father does not keep her informed of medical matters relating to the child.
The objection in relation to the child’s records is dismissed.
SUBPOENA TO DEPARMENT OF HUMAN SERVICES
Both the father and Ms Digby have lodged objections.
The subpoena calls for the records of medications prescribed to each of the child, the father and Ms Digby and records of all claims on medicare.
The mother does not assert that the child has been inappropriately medicated, but rather that the father does not inform her when medication is prescribed. However, I note that she deposed that the child has come to her with prescription medication and that she has ensured that the medication is taken as prescribed.
Any medications prescribed for the child will be apparent on the face of Dr G’s records.
There is no evidence in the affidavit of the mother which explains why the father’s records would assist the Court in the proceedings.
In relation to Ms Digby, records of medication prescribed could not be evidence of any medical condition suffered by Ms Digby. Expert evidence would be required to establish any link between the medication and the condition for which it is prescribed.
The subpoena has no forensic purpose in the proceedings.
The objection is upheld.
SUBPOENA TO H HOSPITAL
Ms Digby was admitted to the hospital before the hearing before Judge Sexton and that information was available to her Honour.
Counsel for Ms Digby told the Court that he was instructed that she had not been admitted.
The mother is entitled to test that assertion.
The subpoena seeks production of all and any record relating to Ms Digby from 1 July 2014 to date. I consider the terms to be unnecessarily wide and inspection will be allowed only in relation to any document relating to any admission of Ms Digby to the hospital.
INSPECTION OF DOCUMENTS
The ICL expressed a concern that access to documents produced might result in unnecessary distress for the child and sought that he have a right of first inspection. The reasons for judgment of Judge Sexton are replete with instances of the mother interrogating the child about what she is alleged to have said to third parties.
The father and Ms Digby sought a restriction on inspection by the mother without order of the Court but did not object to inspection by her legal representatives.
In relation to the documents produced by the school, counsel for the mother conceded that she should not be entitled to inspect the documents without specific authorisation from the Court.
The objections to inspection are based on the assertion that the mother, in the past, has misused information she discovered from material produced on subpoena including disclosing sensitive medical information to third parties. In his affidavit, the father set out examples of communications by the mother to third parties which the father submits are inappropriate. The father deposed that the mother, in the presence of the father and of the mother of another child, shouted at Ms Digby “You should go back to rehab”, the significance being that the mother is alleged to have known of Ms Digby having been in “rehab” from material produced on subpoena.
Ms Digby asserts that the mother emailed an administrator at her place of work, stating that the father was in therapy and that Ms Digby suffered from a mental illness, and therefore that the mother disclosed to a third party information from Ms Digby’s medical records.
No doubt the mother denies those allegations and, in the usual course, reference to the obligations of parties to the use of material produced on subpoena would suffice.
However, I have no confidence that, in this instance, the safeguards in the Family Law Rules 2004 (Cth), would be sufficient.
In her reasons delivered 17 April 2015, Judge Sexton made a number of findings about the mother’s attitude. Her Honour found:
· The Mother uses disdainful, contemptuous language about the Father and Ms Digby in her emails and text messages to the Father. The Mother refers to Ms Digby as “the slut”, “as flopsy” “a drunk and a slut who has done half the barristers in town” “either lazy or drinking again”. [83]
· The Mother treats them both (the father and Ms Digby) with contempt and has done so for a long time. [112]
· Her disregard for Court orders is extremely serious. [112]
· The Mother’s remark to B School that she “does not care about Court orders” to be accurate. [108]
· The Mother has admitted to serious contraventions of Court orders. I find the Mother is likely to persist in ignoring Court orders when compliance does not suit her agenda. This would mean exposure to ongoing conflict for the child and a further undermining of the child’s relationship with the Father. I find it particularly telling that the Mother persisted in breaching her obligation to facilitate the child’s time with her Father, despite the proximity of this final hearing, and despite her professional obligations as a solicitor. Her actions have been brazen. [249]
(Footnotes deleted)
There was no challenge to her Honour’s findings.
In the circumstances of this case, the ICL will inspect the documents first and may relist the matter in the event that he forms the view that inspection of any document should not be permitted by either parent or their respective legal representatives.
If no application is brought by the ICL, the legal representatives for the mother may inspect the documents but no information from those documents is to be conveyed to the mother without the leave of the Court.
There is no restriction imposed on the inspection of documents by the father and his legal representatives.
I certify that the preceding ninety-nine (99) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Rees delivered on 6 November 2018.
Associate:
Date: 6/11/2018
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