HARDY & LEVESQUE
[2019] FCCA 377
•21 February 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HARDY & LEVESQUE | [2019] FCCA 377 |
| Catchwords: FAMILY LAW – Practice and procedure – objection to subpoena – relevance – where the subpoena material relates to the Father’s mental health – evidence that the Father has an extensive history of mental illness and drug and alcohol abuse – balancing the best interests of the child against the public benefit in the protection of privacy – subpoena objections dismissed – legal representatives and Independent Children’s Lawyer permitted to inspect documents. |
| Legislation: Family Law Act 1975 (Cth), ss.11F, 60B, 60CA, 60CC, 62G, 65Z, 68L, 69ZT Federal Circuit Court Rules 2001 (Cth), r.15A.09 |
| Cases cited: Harridge & Anor & Harridge & Anor [2010] FamCA 445 Sadek and Ors & Fall and Anor [2015] FamCAFC 23 Stott & Holgar & Anor [2017] FamCAFC 152 |
| Applicant: | MS HARDY |
| Respondent: | MR LEVESQUE |
| File Number: | MLC 6100 of 2018 |
| Judgment of: | Judge C.E. Kirton QC |
| Hearing date: | 5 February 2019 |
| Date of Last Submission: | 5 February 2019 |
| Delivered at: | Melbourne |
| Delivered on: | 21 February 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Jenkins |
| Solicitors for the Applicant: | Caroline Counsel Family Lawyers |
| Counsel for the Respondent: | Ms Buchanan |
| Solicitors for the Respondent: | Knight Family Lawyers |
ORDERS
The objection by the Father filed 5 November 2018 to inspection of documents produced on subpoena by Dr A is dismissed.
The objection by the Father filed 5 November 2018 and Ms B filed 15 November 2018 to inspection of documents produced on subpoena by Ms B is dismissed.
Save as otherwise ordered, in relation to all documents to which inspection is permitted, such documents may only be inspected by the legal representatives for the Father and the Mother and by the Independent Children’s Lawyer.
No document is to be shown to the Mother without the leave of the Court first obtained.
AND THE COURT NOTES THAT:
On 8 November 2018 Consent Orders were made that:
(a)The Father do all such acts and things necessary to submit to a Psychiatric Assessment to be conducted by Dr C, or such other psychiatrist as may be agreed between the parties to facilitate the preparation of a Report regarding his mental health.
(b)The independent psychiatrist chosen to conduct a Psychiatric Assessment of the Father be at liberty to:
(i)Inspect all documents produced to the Court pursuant to subpoena;
(ii)Communicate with the Father’s clinical psychologist and treating psychiatrist.
IT IS NOTED that publication of this judgment under the pseudonym Hardy & Levesque is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT MELBOURNE |
MLC 6100 of 2018
| MS HARDY |
Applicant
and
| MR LEVESQUE |
Respondent
REASONS FOR JUDGMENT
Introduction
This dispute concerns objections to subpoenas served by the Mother’s lawyers on the Father’s treating psychiatrist and clinical psychologist. The Father objects to each of these subpoenas and the psychologist has also objected to the subpoena served on her.
Background
The parties commenced cohabitation in … 2006 and married on … 2007. Final separation took place on 9 January 2010 and the parties were divorced on 2 February 2012.
The parties have one child, [X] ([X]) born on … 2008, who is now 10 years of age. [X] has always lived with the Mother. The Mother re-partnered in … 2010 and married on … 2012. There is a child of this relationship: [Y], born on … 2013 and who is now aged 5.
Procedural History
This proceeding was commenced by the Mother on 1 June 2018. In her Initiating Application the Mother seeks interim and final orders that include:
a)The Mother have sole parental responsibility for [X].
b)[X] live with the Mother.
c)[X] spend time with the Father:
i)Each Saturday from 3.00 pm to 7.00 pm;
ii)On the Father’s Birthday, [X]’s Birthday and Father’s Day from 4.00 pm to 7.00 pm;
iii)On Christmas Eve from 9.00 am to 2.00 pm;
iv)Such further and other times as agreed between the parties in writing by email.
d)During the time that the Father spends with [X], the paternal grandparents be in substantial attendance, either solely or jointly.
e)Both parties ensure that [X] continues to attend extra-curricular activities currently attended by [X] and any other future extra-curricular activities when [X] is in their care.
f)In the event that the Father fails to facilitate [X]’s attendance at extracurricular activities on three consecutive occasions without reasonable excuse whilst [X] spends time with the Father, the Father’s time with [X] be suspended.
The matter first came before the court on 10 July 2018. The Mother was represented by lawyers and the Father was self-represented. The Court ordered that pursuant to s.11F of the Family Law Act 1975 (Cth) (Act) the parties and [X] attend upon a Family Consultant for the purposes of a Child Inclusive Conference on 19 October 2018. The Court also ordered that the Father file and serve a Response to Initiating Application, Notice of Risk and Affidavit within 28 days. It was also ordered by consent that:
a)[X] spend time with the Father:
i)From 2.00 pm to 7.00 pm on Sunday, 15 July 2018;
ii)During term time and during [X]’s football season, each alternate Saturday from 3.00 pm to 7.00 pm commencing 4 August 2018;
iii)During term time and outside of [X]’s football season, each alternate Saturday from 3.00 pm (or after [X]’s sports game) to 5.00 pm on Sunday;
iv)On Father’s Day from 10.00 am to 5.00 pm;
v)During the September/October 2018 school holiday period from 2.00 pm on Sunday 30 September to 5.00 pm on Wednesday 3 October 2018;
vi)At other times as agreed between the parties in writing.
b)During the time [X] spends with the Father:
i)The paternal grandparents (Mr D and Ms E) or one of them, be in substantial attendance; and
ii)Overnight time is to take place at the home of the paternal grandparents.
c)The Father consented to the time with [X] and the requirement for the substantial attendance of the paternal grandparents, without admitting the necessity for the same.
d)Pursuant to s.65Z of the Act the Mother was authorised to remove [X] from the Commonwealth of Australia for the purpose of travelling to Country F, departing no earlier than 20 July 2018 and returning to the Commonwealth of Australia on 28 July 2018.
The Father, continuing to act on his own behalf, filed his Response to Initiating Application on 13 August 2018. The Father sought interim orders that included:
a)The parties have joint parental responsibility for [X].
b)Each alternate weekend [X] to spend “[…] quality, consistent time with both parents and their families”.
c)“The father to drop [X] back to Town G on Sunday, arriving home no later than 7 pm”.
d)School holidays “[…] to be divided equally between both parents unless one parent has a special arrangement”.
e)“[…] [X] to spend Father’s Day with the Father”.
The Father seeks final orders that include:
a)The parties have joint parental responsibility for [X].
b)“[X] live with the Mother for two years until December 2021 when the Father relocates closer to Town G at which time living arrangements be shared equally between the parents”.
c)Until December 2021 [X] spend time with the Father:
i)“[A]lternate weekends all year round […]”.
ii)“The Father to pick up [X] from school on Wednesdays in Town G for a mid-week visit”.
d)School holidays “[…] to be divided equally between both parents unless one parent has a special arrangement”.
e)At specified times at Easter, Mother’s and Father’s Day and [X]’s birthday.
On 19 October 2018 the parties and [X] attended a Child Inclusive Conference at the Court. The Family Consultant reported in the Child Inclusive Conference Memorandum to Court (Section 11F Memorandum):
[The Father] reported illicit substance use at different times in his life – methamphetamine (Ice) use 15 years ago, cocaine and marijuana use in 2002 leading to him entering a drug rehabilitation centre, marijuana use three years ago (2015), and MDMA use two years ago (2016). [The Father] also reported a drug related conviction when he was 15 years old (two counts of knowingly being concerned with the importation of commercial quantity of methamphetamine) and serving a period of two years in a juvenile centre.
[The Father] reported he has current diagnoses of Bipolar Affective Disorder (2018) and Post Traumatic Stress Disorder (2014). […] He reported attending appointments with his treating psychiatrist, Dr A, on a weekly basis, and with his clinical psychologist, Ms B, on a fortnightly basis. [The Father] reported he is prescribed with antipsychotic medication. At interview, [the Father] denied that his mental health had an impact on his involvement in [X]’s life, and he seemed unable or unwilling to provide explanation for his lack of involvement in [X]’s schooling or sporting commitments.
[The Mother] reported [the Father’s] mental health, associated behaviours, and presence in [X]’s life has been erratic and unpredictable, with periods (weeks and months) of him being absent[1].
[…]
From both parents’ accounts it seemed [X]’s time with his father had been irregular and may contribute to the quality of the relationship he has with him[2].
[…]
[X] expressed dislike of his father and paternal grandparents, reporting he does not want to spend time with them. He expressed some distrust in his father not acting on promises made… [X] appeared to hold his father in low regard in terms of his involvement in his life and sporting commitments, reporting his father often presents to his sports games late[3].
[1] Section 11F Memorandum, 23.10.18, p.2.
[2] Ibid., at p.3.
[3] Ibid., at p. 4.
[…]
At interview, [X] expressed he did not want to see his father and would not speak to him if an observation was undertaken. A brief (15 minute) observation was undertaken and [X] gave monosyllabic responses and appeared to avoid eye contact. [The Father] seemed preoccupied with learning about [X]’s additional commitments [X] (sic) with sports…[The Father] and [X] sat in close proximity and laughed together briefly while playing a game of foosball. There was no physical affection exchanged between them[4].
[4] Loc. cit.
The Family Consultant made interim recommendations which included:
a)[X] live with Mother.
b)Time with the Father occur on alternate Saturdays for one night at the paternal grandparents’ home and the paternal grandparents be in substantial attendance.
c)“The Court will benefit from information from [the Father’s] treating psychiatrist and psychologist regarding his diagnoses and treatment plan”[5].
d)“In light of [the Father’s] mental health diagnoses, inconsistent presence in [X]’s life, and his tendency to use illicit substances the Court will benefit from a forensic psychological assessment of [the Father], by a practitioner experienced in family law, and that practitioner to be provided with information from [the Father’s] treating professionals”[6].
[5] Loc. cit.
[6] Loc. cit.
The Mother’s solicitors filed a subpoena on 2 November 2018 addressed to Dr A, Consulting Suites (First Subpoena). Dr A is the Father’s treating psychiatrist. The documents were to be produced to the Registry by 16 November 2018. The documents sought to be produced pursuant to the First Subpoena are:
All medical records, files, documents, notes, correspondence and all information relating to [the Father] born on … 1981.
The Mother’s solicitors filed a further subpoena on 2 November 2018 addressed to Ms B, (Second Subpoena). Ms B is the Father’s clinical psychologist. The documents were to be produced to the Registry by 16 November 2018. The documents sought to be produced pursuant to the Second Subpoena are of the same description as that for the First Subpoena.
The Father filed a Notice of Objection – Subpoena in relation to the First Subpoena on 5 November 2018 (First Objection). Production of the documents was objected to on the following basis:
I hereby object to the subpoena on the grounds that it seeks information that is not relevant to the case. I will be providing details of my current diagnosis and treatment plan to the Court on 8 November 2018.
The Father also filed a further Notice of Objection – Subpoena in relation to the Second Subpoena on 5 November 2018 (Second Objection). Production of the documents was objected to on the same basis as the First Objection.
The matter next came before the Court on 8 November 2018 for Mention. On that occasion both parties were legally represented. The Court made orders:
a)Listing the matter for final hearing on 29 May 2019.
b)Listing the matter on 5 February 2019 to hear the Father’s objections to the First Subpoena and the Second Subpoena.
c)That pursuant s.62G(2) of the Act the parties attend upon a Family Consultant nominated by the parties for the preparation of a Family Report.
d)Trial directions.
Interim orders were also made by consent, which included:
a)[X] live with the Mother.
b)[X] spend time with the Father:
i)Each alternate Saturday from 3.00 pm (or after [X]’s sports game) until 5.00 pm on Sunday, commencing 10 November 2018;
ii)At other times as agreed between the parties in writing.
c)During the time [X] spends with the Father:
i)The paternal grandparents or one of them be in substantial attendance, including at changeover; and
ii)Overnight time take place at the home of the paternal grandparents.
d)The Father consented to the time with [X] and the requirement for the substantial attendance of the paternal grandparents, without admitting the necessity for the same.
e)The Father submit to a Psychiatric Assessment to be conducted by Dr C, or with such other psychiatrist as may be agreed between the parties, to facilitate the preparation of a report regarding his mental health.
f)The independent psychiatrist chosen to conduct a psychiatric assessment of the Father be at liberty to:
i)Inspect all documents produced to the Court pursuant to subpoena;
ii)Communicate with the Father’s clinical psychologist and treating psychiatrist.
g)The Father be required to attend upon his current treating psychiatrist and clinical psychologist and follow all medical advice with respect to treatment and the taking of prescribed medication.
h)Both parties or their servants and agents and the Father’s supervisors ensure that [X] attend all of his sporting commitments (including but not limited to football, domestic and representative sports) training sessions and games.
i)Should the Father and/or his supervisors not be in a position to take [X] to any of his sporting commitments, they inform the Mother no later than 24 hours prior and return [X] to the care of the Mother forthwith.
On 15 November 2018 Ms B filed a Notice of Objection –Subpoena (Third Objection) in relation to the Second Subpoena. Attached to the Third Objection was a letter from Ms B dated 14 November 2018 addressed to the Registrar of the Court (Ms B Letter). The Ms B Letter informed the Court Registry that Ms B had provided the documents described in the Second Subpoena to the Court, however the documents included a sealed envelope marked ‘Objection to Production’. In the Ms B Letter it is stated that these documents contain “confidential records collected during counselling sessions with my client”. Ms B objects to inspection of these documents by any party to this proceeding on the following basis:
1. Confidential Information
The documentation requested contains confidential information and disclosures relating to alleged institutional abuse. This information was given in confidence. The release of this information in the context of the family court dispute would cause undue distress to my client. My client’s efforts to seek supportive counselling for experiences of victimisation should be encouraged and his privacy protected.
2. Third Party information and privacy of other individuals
The file contains information from third parties (my client’s parent). Giving access to this information conflicts with my obligation to protect information relating to third parties, under privacy laws. The release of this information, given in confidence and in a therapeutic context, would cause my client and his parents undue distress as it is a breach of their privacy. The file also contains copies of correspondence between my client and a third party relating to the disclosure of institutional abuse.
3. The documents are psychological assessment tools and data
The file contains results and details gained from administration of psychological assessment tools for post-traumatic stress and a depression, anxiety and stress screening tool. Interpretation of psychological test data and results should be communicated through psychological reports written by the treating psychologist, in the context of information gained through interview and clinical data. Providing access to psychological test data to others could lead to misuse and misunderstanding of test results[7].
[7] Notice of Objection-Subpoena, filed by Ms B, 15.11.18, Attached Letter dated 14.11.18.
On 16 November 2018 the Court sent the Parties an email forwarding the Notice of Listing of the Subpoena Hearing on 5 February 2019. Ms B was also sent the Notice of Listing of the Subpoena Hearing by post.
The Subpoena Hearing took place on 5 February 2019. Both the Mother and the Father were represented by Counsel. Ms B did not appear[8]. An Order was made pursuant to s.68L(2) of the Act that [X] be independently represented and requesting Victoria Legal Aid to arrange such separate representation. Judgment on the substantive dispute concerning the First Objection, the Second Objection and the Third Objection was reserved.
[8] Transcript T2:38-3:1.
The Issues
The three issues requiring determination are:
a)The objection of the Father to the release and inspection of documents produced under subpoena by Dr A.
b)The objection of the Father to the release and inspection of documents produced under subpoena by Ms B.
c)The objection of Ms B to the release and inspection of documents produced under subpoena by her.
Position of the Parties
Father’s Submissions
Counsel for the Father confirmed that the Father was seeking orders at the final hearing that [X] spend time with him without the requirement for the substantial attendance of the paternal grandparents.
Counsel for the Father relied upon the Ms B Letter. She also produced and relied on:
a)A report from Dr A, dated 5 November 2018 (Dr A Report).
b)A report from Ms B, dated 7 November 2018 (Ms B Report).
The Dr A Report said:
I have been the treating Psychiatrist of [the Father] for a number of years. He has made significant progress during this time.
He continues to be substance free. In addition, he has made a significant breakthrough in his long standing symptoms of mood instability and anxiety. These have largely settled.
As a consequence, [the Father’s] functioning is much improved. He has some job capacity and presents as physically and mentally capable.
He has good psychological understanding in many domains, as well as empathy. This makes him very appropriate for the tasks of child rearing and supervision.
The Ms B Report said:
I have known [the Father] since 2013, when he consulted with me for counselling. He returned in 2018 for further sessions. I am working with [the Father] on treatment of anxiety and PTSD. Our sessions are not focused on the current family court dispute, although I am aware of distress and anxiety this is causing [the Father] and broadly of the conflicts with his ex-wife around parenting arrangements.
From my contact with [the Father] and having also met with his parents, I am of the opinion that [the Father] is a caring and reflective parent, that he is concerned for the wellbeing of his son, that he loves his son deeply and is committed to his role as a father.
Counsel for the Father submitted that it was appropriate for only the forensic psychiatrist Dr C to inspect the subpoenaed documents, so that the Father’s relationship with his treating psychiatrist and clinical psychologist would not be impacted. Counsel relied upon the Ms B Letter and argued that the Father’s privacy should be protected.
It was submitted that the Father’s parents have provided information to Ms B and that information should be protected because they are third parties.
Counsel also submitted that Ms B had undertaken psychological assessment testing for post-traumatic stress, depression, anxiety and stress screenings. It was submitted that Ms B believed that the results of the testing would be misused by a lay person and the results should be given only to a psychiatrist or psychologist who understood such testing. It was contended that the most appropriate person to review these tests was Dr C.
It was submitted that Dr A and Ms B should provide to Dr C information concerning the Father’s diagnoses and treatment plan and not the Mother’s lawyers.
Mother’s Submissions
Counsel for the Mother submitted that the Third Objection should be dismissed on the basis that Ms B had not appeared at the hearing.
It was submitted that the documents sought pursuant to the subpoenas should be made available for inspection only to the legal practitioners for the parties, the Independent Children’s Lawyer and Dr C. The Mother herself did not seek access to these documents.
Counsel relied on the Mother’s Affidavit filed on 17 October 2018 (Mother’s Affidavit) deposing to her concerns about the Father’s mental health impacting upon his ability to be a part of [X]’s life. In particular the following was relied on:
50. […] [the Father] suffers from mental health issues that have continued to worsen over the years since I met him in 2006. I deny that I have exacerbated his mental health issues. I say that at times I have attempted to ease the pressure on [the Father] by rearranging plans regarding [X]’s visits if required.
51. […] I am concerned that [the Father’s] mental health has greatly impacted [the Father’s] ability to be present in [X]’s life and facilitate a meaningful relationship with him. Since I have known [the Father], there have been repeated periods where he is in a state of complete disarray and confusion which has significantly impacted his relationship with [X]. During these times, [the Father’s] communication with me and [X] becomes chaotic and confusing. [The Father] becomes disagreeable and argumentative, constantly changing his mind and becomes inflexible about issues that we previously agreed on and is unable to decipher between serious decisions and more trivial matters[9].
[9] Mother’s Affidavit, filed 17.10.18, at [50] and [51].
Counsel for the Mother also relied on the Section 11F Memorandum which sets out the issues in this matter under headings of “Family Violence”, “Drug and Alcohol” and “Mental Health”. It was submitted that the matters in the Section 11 Memorandum which are reported under the headings “Drug and Alcohol” and “Mental Health”, made the documents sought pursuant to the subpoenas relevant to this proceeding.
In relation to the Father’s mental health, the Section 11F Memorandum reports that the Father has a current diagnosis of bipolar affective disorder and post-traumatic stress disorder. It was submitted that the Dr A Report made no reference to any diagnosis at all. It was further submitted that the Dr A Report states:
He has made significant progress during this time.
However the Dr A Report does not state over what period of time this progress had been made or what the Father was being treated for in the past or currently.
The Section 11F Memorandum reports that the Father has said that he is prescribed with “antipsychotic medication”. It was submitted that the Dr A Report made no reference to any medication. It was therefore not known what medication was prescribed, what it was for or whether the Father was taking the medication appropriately.
It was submitted that the Father had been “quite frank” with the Family Consultant about his “long history with drugs”[10]. Counsel submitted that it was not known what the Father had told his treating practitioners about his drug use and this information was directly relevant to the Father’s relationship with [X] and the time that he spends with [X].
[10] Transcript T12:19-20.
In relation to Ms B, it was submitted that it appeared from the Ms B Report that she treated the Father in 2013 but did not treat him again until 2018. Ms B reports that she is treating the Father for anxiety and post-traumatic stress disorder. Counsel submitted that it was not known whether Ms B was aware of the diagnosis of bipolar affective disorder.
Counsel submitted that the notes of Dr A and Ms B would clearly be more detailed than the Dr A Report and the Ms B Report. The notes would reveal any inconsistencies in disclosure about drug use. They would also reveal: whether the Father was drug free; how long he had been drug free; whether he attended for treatment; and if he had relapsed. It was submitted that all of these issues were relevant matters and the subpoenaed documents may be the only way to obtain that information. The Father may not have been entirely candid about his drug use and mental health issues or he might not recall the information in detail.
Counsel submitted that any information that the paternal grandparents had provided to Ms B about the Father was relevant to the proceeding because they are in substantial attendance when [X] spends time with the Father.
Counsel also rejected the position put in the Ms B Letter and adopted by Counsel for the Wife, that psychological tools and data would be misused if released. It was submitted that it was common for lawyers to read information from psychiatrists and psychologists where there was psychometric testing without misusing the information in any manner. It was contended that the prospect of the possible misuse of the information could not could not be a basis for objecting to the release of such testing.
Legal Principles
The Court may make an order setting aside all of a subpoena or part of a subpoena: r.15A.09 Federal Circuit Court Rules 2001 (Cth).
The relevant principles on subpoena production by third parties were considered in the judgment of the Full Court in Sadek and Ors & Hall and Anor[11]. The Full Court said:
[11] [2015] FamCAFC 23.
[17] In the well-known decision of National Employers Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372, Moffitt P identified the three steps in the procedure of having a third party bring documents to court pursuant to a subpoena and their use thereafter.
[18] The first step is the witness obeying the subpoena by bringing the documents to the court. At that stage the court should determine any application of the witness to the subpoena and any dispute concerning the production of the documents to the court.
[…]
[19] The second step identified by Moffitt P was the consideration of the court granting access to the documents after their production to the court. At 384 Moffitt P said:
[…]
So far as factual matters are concerned, the proper conduct of litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedure of the court. The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.
[20] The third step is the admission of such evidence as may be admissible into evidence.
[21] In another equally well-known decision, namely Hatton v The Attorney-General (Cth) (2000) FLC 93-038 at 87, 606, the Full Court said “the present state of authority is that lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena”[12].
[12] Ibid., at [17]-[21].
Consideration
The First Subpoena and the Second Subpoena were issued on 2 November 2018. On 8 November 2018 Orders were made by consent that the independent psychiatrist chosen to conduct the psychiatric assessment of the Father be at liberty to inspect all documents produced to the Court pursuant to subpoena and to communicate with the Father’s treating psychiatrist and psychologist[13] (Consent Order).
[13] Order 7 Consent Orders, 8.11.18.
Dr A has complied with the First Subpoena and Ms B has complied with the Second Subpoena and the documents have been brought to the Court.
In this context the first step identified in National Employers Mutual General Association Ltd v Waind and Hill[14] has been completed. By the Consent Orders the parties concede that the records of Dr A and Ms B are relevant to this parenting proceeding. The Father has consented to Dr C inspecting the records of Dr A and Ms B by reason of the Consent Orders and also in submissions made by Counsel for the Father. Therefore notwithstanding the Father’s stated objection to the subpoenas on the basis that each “seeks information that is not relevant to the case”, this objection is without foundation.
[14] [1978]1 NSWLR 372.
The next step is therefore for the Court to decide the preliminary use to which the documents could be put, including whether or not permission should be given for their inspection.
The Father does not agree to the Mother or her lawyers inspecting the records of Dr A and Ms B. The Mother agrees that only her lawyers should be permitted to inspect the records.
The Father claims that in order to protect his privacy and to preserve his therapeutic relationship with Dr A and Ms B, the Mother and her lawyers should not have access to the records of Dr A and Ms B. Although not argued before me, a claim for confidentiality is often argued as a claim for public interest immunity.
In Merrill & Burt (Merrill v Burt)[15] Cronin J considered a claim for public interest immunity in response to a subpoena served on the wife’s treating doctor. In that case the doctor expressed concern for the health of the wife by the exposure to the Court of his work with her. In Merrill & Burt Cronin J said:
I consider each matter has to be taken on its merits and in respect of children’s matters such as this, there has to be a balancing of the conflictual principles of public benefit and child’s best interests […]
The Act consistently places the child or children’s best interests at the forefront of any decision regarding parenting such that the courts may well have recognised… the reconciliation of these two principles through which a confidential therapeutic relationship may be protected. There is no evidence here that these children are at risk such that their best interests would be served by breaking the confidentiality of the therapeutic relationship[16].
[15] [2015] FamCA 159.
[16] Ibid., at [39].
In Merrill & Burt[17] Cronin J set aside the subpoena on the basis of relevance and also public interest immunity. The husband had not filed any affidavit material in support of his application and there was no extant parenting application before the court “[…] that would invoke concern about making immediate parenting orders”[18]. The final parenting orders failed to seek parenting relief and the proposed parenting orders were “[…] of such limited issue that their connection with the health of the mother was unclear”[19]. His Honour considered that the subpoena was “fishing” and seeking information not relevant to the proceeding.
[17] [2015] FamCA 159.
[18] Ibid., at [28].
[19] Loc. cit.
Before the Court can make parenting orders in relation to where [X] lives and any spend time arrangements with the Father, the Court must consider the relevant statutory provisions in the Act.
Part VII of the Act contains the relevant provisions concerning children. Section 60B of the Act sets out the objects of Part VII and the principles underlying it.
Section 60CA of the Act provides:
In deciding whether to make a particular parenting order in relation to a child, a court must regard the best interests of the child as the paramount consideration.
Section 60CC of the Act sets out how the Court is to determine what is in a child’s best interests.
Section 60CC(1) of the Act provides that:
Subject to subsection (5), in determining what is in the child’s best interests, the court must consider the matters set out in subsections (2) and (3).
The matters set out in sub-s.(2) are primary considerations and the matters set out in sub-s.(3) are additional considerations.
Section 60CC(2) sets out the two primary considerations that the Court must take into account in determining what is in a child’s best interests. Section 60CC(2) of the Act provides that:
The primary considerations are:
(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and
(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.
Section 60CC(2A) of the Act provides that:
In applying the considerations set out in subsection (2), the court is to give greater weight to the consideration set out in paragraph (2)(b).
In considering s.60CC(2)(b) a significant issue in this proceeding is the assessment of risk to [X] if he spends unsupervised time with the Father. On the basis of the evidence in the Section 11F Memorandum, the Dr A Report, the Ms B Report and the Mother’s Affidavit, the Father has a lengthy history of drug and alcohol abuse and mental illness. The Court will need to assess the level of risk of harm that [X] may be exposed to if he spends unsupervised time with the Father.
The Full Court of the Family Court recently considered the law with respect to unacceptable risk in in Stott & Holgar & Anor[20]. The Full Court stated:
[34] The “unacceptable risk” test articulated by the High Court, in the context of disputed allegations of sexual abuse, is expressed as follows in M v M (1988) 166 CLR 69 where the High Court said at 78:
In devising these tests the courts have endeavoured, in their efforts to protect the child’s paramount interests, to achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access. To achieve a proper balance, the test is best expressed by saying that a court will not grant custody or access to a parent if that custody or access would expose the child to an unacceptable risk of sexual abuse.
[35] The “unacceptable risk” test applies also to other forms of risk, including risks to children associated with exposure to family violence: A v A (1998) FLC 92-800 at 3.15 and 3.25; Amador v Amador (2009) 43 Fam LR 268 at [89].
[36] In B and B (1993) FLC 92-357 at 79,778, the Full Court described the test as:
the standard used by the Family Court to “achieve a balance between the risk of detriment to the child from sexual abuse and the possibility of benefit to the child from parental access”. In other words, where the Court makes a finding of unacceptable risk it is a finding that the risk of harm to the children in having access with a parent outweighs the possible benefits to them from that access.
[20] [2017] FamCAFC 152.
[37] As an eminent former judge of this Court has said (emphasis added):
… unacceptable risk in the High Court’s formulation requires two separate steps. Is there a risk, and is it unacceptable? The concentration by the High Court is upon both the nature and the degree of risk in the particular case. Its formulation is all about balance. In some cases a risk is ‘acceptable’ when balanced against other factors and other orders. The object of safeguards is to convert an unacceptable situation to an acceptable one where that is feasible and is of ‘benefit to the child’ …
[38] We accept that where an unacceptable risk is alleged, the court must give real and substantial consideration to the facts of the case and decide whether or not, and why or why not, those facts could be said to raise an unacceptable risk of harm (N and S and the Separate Representative (1996) FLC 92-655 per Fogarty J; Napier and Hepburn (2006) FLC 93-303, per Warnick J adopted with approval in Potter and Potter (2007) FLC 93-326 at [124] and [125]; Johnson and Page (2007) FLC 93-344 at [66] and [67])[21].
[21] Ibid, at [34]-[38], (Thackray, Kent and Watts JJ).
In Harridge & Anor & Harridge & Anor[22] Murphy J set out criteria for trial judges determining issues of unacceptable risk as follows:
[22] [2010] FamCA 445.
(1) What harmful outcome is potentially present in this situation?
(2) What is the probability of this outcome coming about?
(3) What risks are probable in this situation in the short, medium and long term?
(4) What are the factors that could increase or decrease the risk that is probable?
(5) What measures are available whose deployment could mitigate the risks that are probable?[23]
[23] Ibid., at [73].
Evidence of the Father’s history of drug and alcohol abuse and mental illness and his current treatment from the Father’s treating psychiatrist and clinical psychologist is relevant for the purposes of s.60CC(2)(b) of the Act.
Therefore the Court has to balance the Father’s desire for confidentiality and the requirements of s.60CA of the Act that [X]’s best interests have paramount consideration. In this case:
a)The Father has an extensive history of drug and alcohol abuse and mental illness.
b)[X] lives with the Mother and has done so all his life.
c)[X] has a troubled relationship with Father, according to the Section 11F Memorandum and does not want to spend time with the Father.
d)The Mother commenced this proceeding seeking orders in her Initiating Application that the paternal grandparents be in substantial attendance when the Father spends time with the Father.
I have determined in this case, balancing the conflicting principles of the public benefit of the protection of privacy and a confidential therapeutic relationship and the best interests of the child, that the latter prevails. The Mother’s lawyers and the Independent Children’s Lawyer should be able to assess for themselves the evidence that they seek to place before the Court.
I turn to consider the submission made by Ms B and adopted by Counsel for the Father, that the results of psychological assessment testing for post-traumatic stress, depression, anxiety and stress screenings should not be released for inspection on the basis that they might be misused by a lay person. It was contended that the results should be only given to a psychiatrist or psychologist who understood such testing and that the most appropriate person to review these tests was Dr C.
This submission is misconceived and fails to understand the third step identified in National Employers Mutual General Association Ltd v Waind and Hill[24], being “[…] the admission of such evidence as may be admissible into evidence”[25]. The Court determines the admissibility of the evidence. Whist in child-related proceedings the provisions of the Evidence Act 1995 (Cth) do not apply[26], the Court may give such weight (if any) as it thinks fit to evidence admitted as a consequence of a provision of the Evidence Act 1995 (Cth) not applying[27].
[24] [1978]1 NSWLR 372.
[25] Sadek and Ors & Hall and Anor [2015] FamCAFC 23, at [20].
[26] Section 69ZT(1) of the Act.
[27] Ibid, at s.69ZT(2) of the Act.
Further the submission fails to take into account that counsel and lawyers experienced in family law and other jurisdictions regularly have access to such testing, are experienced in drawing an informed view about the results of such tests and are often assisted by experts retained by their own clients to interpret such test results. It is ultimately up to the Court to determine whether it will admit such evidence and to determine what weight, if any it will place upon such evidence.
I also consider the submission made by Ms B and adopted by Counsel for the Father, that the Father’s parents have provided information to Ms B and that information should be protected because they are third parties.
I refer to the discussion in paragraphs 60 to 62 and 64 with respect to this submission. Further the paternal grandparents have been required by order of the Court to be in substantial attendance when [X] has been spending time with the Father. They are therefore potentially witnesses in this proceeding.
Conclusion
I have determined that for the reasons discussed above, when balancing the competing principles of the public benefit of the protection of the Father’s privacy and his confidential therapeutic relationship with his treating practitioners and the best interests of [X], that the latter prevails.
The Father’s objections to the First Subpoena and the Second Subpoena are dismissed. The objection to the Third Subpoena is also dismissed and orders are made accordingly.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge Kirton
Date: 21 February 2019
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