Harkiss and Beamish
[2011] FMCAfam 527
•26 May 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| HARKISS & BEAMISH | [2011] FMCAfam 527 |
| FAMILY LAW – Subpoena to produce documents relating to family counselling – parties to counselling consent to production – whether the provider of family counselling nonetheless has a discretion to withhold production – meaning of the word “may” in s 10D(3)(a) – production of documents required – confidentiality belongs to the parties to family counselling and not the provider of the same. |
| Family Law Act 1975, ss.10D, 10E Family Law Amendment (Shared Parental Responsibility Bill) 2005 Family Law Amendment (Shared Parental Responsibility Bill) Act 2006 |
| Applicant: | MR HARKISS |
| Respondent: | MS BEAMISH |
| File Number: | WOC 553 of 2010 |
| Judgment of: | Altobelli FM |
| Hearing dates: | 24-27 May 2011 |
| Date of Last Submission: | 25 May 2011 |
| Delivered at: | Sydney |
| Delivered on: | 26 May 2011 |
REPRESENTATION
| Counsel for the Applicant: | Mr Steward |
| Solicitors for the Applicant: | R & M Legal Solicitors & Attorneys |
| Counsel for the Respondent: | Mr Millar |
| Solicitors for the Respondent: | Dobinson Davey Clifford Simpson |
| Counsel for the Independent Children’s Lawyer: | Mr Maurice |
| Independent Children’s Lawyer: | Williamson Isabella Lawyers & Public Notaries |
| Solicitor for UnitingCare: | Watts McCray Lawyers |
ORDERS
THE COURT ORDERS THAT:
UnitingCare is to produce the documents referred to in the relevant subpoena within 7 days.
IT IS NOTED that publication of this judgment under the pseudonym Harkiss & Beamish is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
WOC 553 of 2010
| MR HARKISS |
Applicant
And
| MS BEAMISH |
Respondent
REASONS FOR JUDGMENT
By way of a Notice of Objection to subpoena filed 2 February 2011, UnitingCare Unifam objects to the production of documents pursuant to a subpoena that was directed to it. The said Notice of Objection annexes to it a two page document setting out 13 points in support of the objection. I incorporate these points into these oral reasons.
Mr Marhinin, a partner at Watts McCray, appeared on behalf of Unifam yesterday to further address the court on the issue. By way of a short summary of the objection, Unifam asserts that their file firstly, relates to family counselling. This is not disputed by the father or mother in these proceedings. Secondly, that s 10D of the Family Law Act 1975 mandates the communications referred to in that section must not be disclosed. Thirdly, that production is resisted because family counselling is undertaken on the basis of an assumption of confidentiality, and that there is a substantial public interest policy in maintaining confidentiality in family counselling. Fourthly, moreover that as s 10E probably would prevent admissibility of the material, that in these circumstances, confidentiality under section 10D should be preserved.
Whilst I am grateful for these submissions, I think they miss the distinguishing feature of this particular case, and that is neither the mother nor the father object to production, and moreover, both parents consent to the family counsellor disclosing the communication under s 10D(3)(a).
Mr Marhinin submits that even in those circumstances, his client has discretion whether to produce the documents because s 10D(3) uses the word “may”. With respect, I think he misinterprets the word “may” in its context. He interprets the word in such a way that gives to his client an absolute discretion whether to produce or not. On his interpretation, it must follow that even if the court were to order under s 10D(3)(b)(ii) that the family counsellor may disclose, his client would still have the discretion not to. I do not believe that that is what the word means in its context.
When s 10D(3) uses the word “may”, it is meant to convey the opposite to “must not”, as it is used in section 10D(1). It is meant to give permission to disclose rather than to create a discretion whether or not to disclose. The role of the word “may” in s 10D(3) is to enable disclosure. This is consistent with paragraphs 118 and 119 of the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility Bill) 2005, which led to the Family Law Amendment (Shared Parental Responsibility Bill) Act 2006, which introduced ss 10B to 10E.
I also record that even if the parents did not consent to the disclosure, I would have ordered the same under s 10D(3)(b)(ii). This is a finely balanced, difficult children’s case. The evidence is conflicting. Credit will play a major role in the decision. The mother makes very serious allegations as to the father’s conduct, which he strenuously denies. She asserts that he made relevant admissions in family counselling, so she wants production. He asserts that he did not make these admissions, so he wants production.
If the mother is wrong, it is possible that an adverse inference will be drawn against her credit. If the father is wrong and the documents do, in fact, record an admission, this may well constitute an admission under s 10E(2)(a) that a child is at risk of abuse. Clearly, the information is relevant and is necessary for the parents to be able to properly conduct their case. Indeed, it may be material that is admissible under s 10D(2). Until it is produced, no one will know.
It certainly does not follow that production under s 10D(3) inevitably leads to admissibility under s 10E(2), but neither does it follow that possible inadmissibility under s 10E should prevent disclosure under s 10D(3). In these circumstances, I order UnitingCare to produce the documents referred to in the relevant subpoena within seven days. If there is no further objection to production or inspection, then the Federal Magistrates Court Rules will automatically provide leave for the parties to inspect the same.
My final comment should be regarded as obiter. The most disturbing aspect of the submissions on behalf of Unifam is that, at least by implication, it asserts to itself the privilege to be able to control when information is provided to the court, presumably, on the basis of some public policy consideration that it deems prevails over another public policy consideration, which is that a court, whose duty it is to regard the best interests of the child as the paramount consideration, should have all relevant information available to it.
Perhaps I am putting their position too highly and unfairly, but I must say, that is the perception that I have formed rightly or wrongly. If my perception is correct, however, I believe Unifam’s perspective is fundamentally flawed. Firstly, as I have indicated above, s 10D(3) is quite clear in its terms. Unifam is not in a privileged position. It does not decide when confidentiality applies – the court does. Secondly, there is a regrettable arrogance in asserting the proposition that even when the parties to family counselling themselves give consent to production, that it may decide not to.
The flaw in this proposition is that the confidentiality is that of the parties to family counselling, not that of the provider of family counselling. If the question is asked: “whose interests are served by section 10D?” I read nothing in the section that says it is the interests of the provider of family counselling. Rather, the section protects the interests of parties to family counselling and their children. When the parties to family counselling give consent to disclosure, it is not for the provider of family counselling to object to this.
I certify that the preceding eleven (11) paragraphs are a true copy of the reasons for judgment of Altobelli FM
Date: 31 May 2011
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