HASTINGS & MARCH
[2019] FCCA 2548
•20 September 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| HASTINGS & MARCH | [2019] FCCA 2548 |
| Catchwords: FAMILY LAW – Subpoena objection – questions of “relevance” and whether the subpoena amounts to a “fishing expedition” – two Reports already before the Court – the children have been the subject of regular and intense assessment for many years – importance of therapeutic relationship being protected between older child and counsellor – objection upheld. |
| Legislation: Family Law Act 1975 (Cth), ss.10B – 10E, 60CA, 69ZN. |
| Cases cited: Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 Hatton v Attorney-General (Cth) (2000) 26 Fam LR 570 Unitingcare – Unifam Counselling and Mediation v Harkiss (2012) 46 Fam LR 12 |
| Applicant: | MR HASTINGS |
| Respondent: | MS MARCH |
| File Number: | CAC 256 of 2009 |
| Judgment of: | Judge Neville |
| Hearing date: | 21 June 2019 |
| Date of Last Submission: | 5 July 2019 |
| Delivered at: | Canberra |
| Delivered on: | 20 September 2019 |
REPRESENTATION
| Solicitors for the Applicant: | Jacqueline Gore & Associates Pty Ltd |
| Solicitors for the Respondent: | Legal Aid ACT |
ORDERS
The subpoena objection of Ms B filed on 15th January 2019 be upheld.
Absent any opposing Application within 14 days of the date of these Orders, being by 4th October 2019, each party pay their own costs.
IT IS NOTED that publication of this judgment under the pseudonym Hastings & March is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT CANBERRA |
CAC 256 of 2009
| MR HASTINGS |
Applicant
And
| MS MARCH |
Respondent
REASONS FOR JUDGMENT
Introduction
There are 3 children subject to these proceedings: [X] (16 years old), [Y] (14 years old) and [Z] (12 years old) (“the children”).
The immediate issue to determine relates to a subpoena, filed by the Applicant Father on 10th December 2018, which was directed to Ms B of Counselling Service C. Ms B is currently conducting therapy on an ongoing basis with [Y], and has done so since February 2017.
The subpoena in question seeks the production of, among other things, copies of all counselling notes, progress notes, reports, memos, advices and assessments conducted of [Y].
The parties filed two sets of submissions: the first in relation to the Notice of Objection, filed by Ms B on 15th January 2019, and the second in relation to the confidentiality of the material that may be produced under the subpoena to Ms B.
At the directions hearing on 21st June 2019, the parties agreed for this interim decision to be determined on the papers, and directions for the filing of further submissions were then made.
For the reasons that follow, the objection by Ms B must be upheld. I would also disallow access to and inspection of the records of Ms B because of the potential damage to the therapeutic relationship between her and [Y]. It is in the child’s best interests that the confidentiality of that relationship be maintained and not risk any possible compromise to it.
Notice of objection to subpoena filed by Ms B
Ms B filed the relevant Notice of Objection on 15th January 2019. She attached a letter to the Notice that set out the reasons for her objection to the production of some or all of the requested documents. That letter was in the following terms:
Dear Sir/Madam,
I give notice that I object to the production of some or all of the documents to the Court as I have has a therapeutic relationship with [Y] since 23 February 2017. Producing the documents under this subpoena would undermine this therapeutic relationship and I am concerned that [Y] may consider it a breach of her trust, to disclose her private information to the Court and to her parents. I have a professional confidential relationship with [Y] and I wish to maintain this confidentiality for [Y]’s best interests.
Please note that I am on leave from Close of business on Friday December 21, returning to my Town D clinic on Tuesday 15 January. I can only be contacted via my mobile or email in the interim.
Yours sincerely
Ms B BAppSocSc(Couns)
Counselling Service C
Submissions on behalf of the Applicant in relation to the subpoena objection
The Applicant filed submissions on 26th March 2019 in relation to Ms B’ Notice of Objection. Those submissions, which (for an unknown reason) were without paragraph numbering, were as follows:
APPLICANT FATHER’S WRITTEN SUBMISSIONS IN RELATION TO NOTICE OF OBJECTION TO SUBPOENA
The Applicant Father filed a subpoena to Counselling Service C on 11 December 2018, with the Canberra Registry of the Federal Circuit Court of Australia.
On 15 January 2019, Ms B of Counselling Service C, hereinafter referred to as “Ms B” filed a notice of objection to subpoena in relation to the above-mentioned subpoena with an undated letter annexed outlining reasons pertaining to the objection.
The matter came before Your Honour, on 5 March 2019 and by Consent an Order was made that each party is to file and serve written submissions as to their position in relation to the notice of objection to subpoena filed on 15 January 2019.
The father presses the subpoena on the basis that it is in the best interests of the child for the subpoena material to be produced to the Court.
It is respectfully submitted that Ms B is not a family counsellor or family dispute resolution practitioner pursuant to the Family Law Act (Cth) 1975 (“the Act”) and as such the protections under sections 10D, 10E, 10J and 10K of the Act are not applicable, whilst this is not the basis of the objection made by Ms B, it is respectfully submitted that this issue was raised by the solicitor for Respondent Mother on the last occasion.
Ms B makes her objection on the following key points:
1) There has been a therapeutic relationship between Ms B and the child [Y] since Feb 2017;
2) Producing the documents under the subpoena would undermine the therapeutic relationship between Ms B and the child [Y];
3) The Child [Y] would consider it a breach of trust to disclose private information to the Court and the child’s parents; and
4) There exists a professional confidential relationship between the child and Ms B and Ms B wants that relationship to continue, for the child’s best interests.
Responding in like the Applicant Father makes the following submissions:
1) Whilst it is conceded that there exists a therapeutic relationship between the child and Ms B, it is respectfully submitted that this is irrelevant. There exists no evidence before the Court that the therapeutic relationship between the child and Ms B is to continue or should that relationship continue, the length of time that the relationship will continue.
2) There exists no evidence before the Court that the release of the subpoenaed material would undermine the therapeutic relationship between Ms B and the Child. It is respectfully submitted that this is a subjective statement, made without supporting evidence.
Further it is submitted that a document titled “Counselling Report” dated 3 April 2018, under the hand of Ms B has been annexed at annexure “C” to the Respondent Mother’s affidavit that was filed with this Honourable Court on 27 September 2018. At paragraph one of this report on page one, it states, “[Y] has disclosed the following in our sessions about her relationship with her Dad (Mr Hastings) and Ms E (her step mum).”
From reading the abovementioned document it becomes apparent that this report does not detail any disclosures that the Child [Y] has made in relation to her Mother or other siblings.
3) There is no evidence to support the statement that the Child [Y] would consider the release of subpoenaed information a breach of trust, it is respectfully submitted that this statement is speculation made by Ms B.
Further it is submitted that this statement is at complete odds with the annexure of the “Counselling Report” referred to herein at point 2.
It is further submitted that in this respect the Applicant Father does not press access to the subpoenaed material and it is submitted that an Order allowing for legal representative access only could address any perceived issues in relation to either party reviewing this material.
4) Ms B raises that she wants the current professional relationship to continue in the child’s best interests, it is respectfully submitted that the determination of the child’s best interests is a matter for the Court to determine, not Ms B.
Again it is submitted that the confidential relationship that Ms B claims exists between the child [Y] and Ms B has been breached by the production and dissemination of the “Counselling Report,” referred to herein at point 2.
It is further submitted by the Applicant Father at paragraph one on page three of the abovementioned “Counselling Report” it states, “[Y] wants to live with her Mum five days a week and with her Dad two days a week.” It appears this disclosure was made in February 2017, at the time when contact between the child [Y] and the Applicant Father stopped.
It is respectfully submitted that this view is in contrast to views expressed by the Child [Y] in the Limited Issues Wishes Report at paragraph 39 of that report [Y] states, “… I do not want a relationship with my Father.”
Concerns have been raised by the Father as to what disclosures the Child may have made in relation to the Respondent Mother and the facilitation of the relationship between the child [Y] and the Applicant Father.
It is further respectfully submitted that there exists an apparent relevance to issues in the substantive proceedings and Your Honour is referred to the judgement of Hatton v Attorney-General of Commonwealth of Australia and Ors [2000] FamCA 892, in that respect.
The substantive proceedings listed before this Honourable Court is a contravention application filed by the Applicant Father on 1 March 2018.
The Respondent Mother in her affidavit filed 27 September 2018, at paragraphs 19, 26 and 34 inclusive, makes admissions in relation to the contraventions asserted by the Applicant Father.
The Respondent Mother deposes reasonable excuse in relation to the contraventions in that it was not in the child [Y]’s best interest to spend time with the Applicant Father and at paragraph 25 of the affidavit filed by the Respondent Mother, the Respondent Mother seeks to rely on the “Counselling Report” listed at point 2 herein.
It is respectfully submitted that Orders must be made to compel Ms B to produce the subpoenaed material, so that a proper determination as to the best interest of the child can be made by the Court, that incorporates all relevant material being available to the Court in relation to the Child [Y].
Costs
It is respectfully submitted that in the event the Applicant Father’s submissions are successful, that an order for the Applicant Father’s costs of and incidental to the objection of subpoena be made, to be shared equally by Ms B and the Respondent Mother.
It is respectfully submitted that section 117(1) of the Act does not apply, due to the conduct of Ms B and the Respondent Mother, in that the Respondent Mother supports the objection made by Ms B to the subpoena to Counselling Service C.
It is submitted the Court should look at the following pursuant to section 117(2A) of the Act.
(a) the financial circumstances of each of the parties to the proceedings;
It is respectfully submitted there is no evidence of the financial circumstances of each party before the Court. However it is further submitted that each party has full time employment.
(b) whether any party to the proceedings is in receipt of assistance by way of legal aid and, if so, the terms of the grant of that assistance to that party;
It is respectfully submitted the Respondent Mother is in receipt of a grant of Legal Aid, the Applicant Father is not.
(c) the conduct of the parties to the proceedings in relation to the proceedings including, without limiting the generality of the foregoing, the conduct of the parties in relation to pleadings, particulars, discovery, inspection, directions to answer questions, admissions of facts, production of documents and similar matters;
It is respectfully submitted that costs have been incurred in relation to the objection to subpoena filed by Ms B on behalf of Counselling Service C. In the event the Applicant Father’s application is successful, it is submitted that the Applicant Father should not bear the cost of responding to the objection to subpoena.
(d) whether the proceedings were necessitated by the failure of a party to the proceedings to comply with previous orders of the court;
It is submitted this section does not apply
(e) whether any party to the proceedings has been wholly unsuccessful in the proceedings;
It is submitted this will be relevant upon determination of the objection.
(f) whether either party to the proceedings has made an offer in writing to the other party to the proceedings to settle the proceedings and the terms of any such offer;
It is submitted this section does not apply
(g) such other matters as the court considers relevant.
It is submitted the matters raised herein are relevant to the issue of costs, particularly the inclusion of the “Counselling Report” into the Respondent Mother’s material and then an objection to producing any further documents.
It is further submitted that the body of these written submission are relevant to the issue of costs.
Prepared by
Matthew Lloyd
Solicitor of the Applicant Father
Submissions on behalf of the Respondent in relation to the subpoena objection
The Respondent’s submissions, filed 26th March 2019 regarding Ms B’ Notice of Objection to subpoena, were as follows:
SUBMISSIONS ON BEHALF OF THE RESPONDENT MOTHER
1) These submissions relate to an objection to a subpoena that was filed by the father’s solicitor on 11 December 2018. On 15 January 2019, Counselling Service C (“Ms B”) filed her objection. The Respondent Mother supports this objection.
Authorities Relied Upon:-
a) Hatton & Attorney-General of the Commonwealth of Australia & Commonwealth Bank of Australia [2000] FamCA 892 (“Hatton”);
b) Langan & Langan [2013] FCCA 258;
c) Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs [2004] HCA 36 (“Behrooz”);
Relevance & Forensic Purpose
2) In Behrooz, the High Court noted that a subpoena must serve a ‘legitimate forensic purpose’. This position was adopted by Neville J in Langan & Langan [2013] FCCA 258 who stated at [4] that “the principles articulated in [Behrooz] … apply equally to production of documents pursuant to subpoena’. In Hatton, the Full Family Court held at [49] that a ‘lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena’. However, in Hatton, the Court held at [23] that ‘relevance’ also needs to be considered with reference to the ‘actual documents filed in Court’.
3) The material the Court currently has before it renders the subpoena to Counselling Service C (“CSC”) irrelevant. Ms B has already provided two reports in 23 May 2017 and 3 April 2018 and the report from 3 April 2018 is annexed to the mother’s affidavit filed 27 September 2018 at annexure “C”. Further, on 3 October 2018, the parties consented to an order for a Wishes report to obtain the views and concerns of [Y]. This was released to the parties on 30 January 2019. These documents detail [Y]’s progress in counselling, her concerns and wishes and highlights that very little (if any) relevant evidence can be gleaned from the subpoena. Further, if there are any specific questions outstanding that the Applicant Father would like answered, in our submissions this could be addressed by a joint letter from the parties to Ms B (if necessary).
Maintaining Therapeutic Relationship
4) Section 69ZN of the Family Law Act provides that in child-related proceedings the Court must consider “the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings”. Therefore when considering the release of child therapy notes, the impact upon the child in releasing such documents is a mandatory one.
5) [Y] has been participating in counselling sessions with Ms B for over two years. In that time, it is submitted that [Y] has made significant progress as a result of her counselling sessions and has forged a strong therapeutic relationship with Ms B. Ms B has expressed a concern that “producing the documents under this subpoena would undermine the therapeutic relationship” and that [Y] may interpret it as a breach of trust. We submit that the continuation of this established therapeutic relationship should not be undermined or derailed by these proceedings. The risk of undermining [Y]’s relationship and trust in her counsellor (and future therapeutic practitioners) is a significant one, and one that the Court should give great weight to. We submit that the Court should have serious concerns about the detrimental impact releasing these documents under this subpoena may have on [Y]’s therapeutic progress and willingness to continue therapy in future.
Confidential
6) We submit that the counselling provided by Ms B falls within the definition of family counselling as per 10B(b) of the Act. This counselling was intended to address personal and interpersonal issues for [Y] regarding her emotions and feelings as well as her relationships with adults in her life. The material sought in the subpoena would include statements made in the context of family counselling sessions which we submit would render the material inadmissible (s 10E). Further, Ms B is under an obligation that she must not disclose communications of her sessions with [Y] (s10D).
7) What is ultimately before the Court is a balancing act between ensuring the parties and the Court have all relevant evidence before it and ensuring that [Y]’s best interests (namely, her successful therapeutic relationship) are not negatively impacted by release of documents under this subpoena. In our submission, very little (if any) relevant evidence can be gained from this subpoena, and there is a significant risk of derailing [Y]’s therapeutic progress if it is released. There is also clear legislative requirements that this information not be disclosed. In light of this, we submit that the Court should not permit access to the subpoena material.
Further submissions on behalf of the Applicant in relation to confidentiality
The Applicant filed further submissions on 5th July 2019 in relation to the confidentiality of the subpoenæd material. These submissions were also without paragraph numbering, and were as follows:
APPLICANT FATHERS WRITTEN SUBMISSIONS IN RELATION TO CONFIDENTIALITY FOR THE NOTICE OF OBJECTION TO SUBPOENA
We rely on submissions that were filed on 26 March 2019 (‘previous submissions’) in this matter, however we seek to further address the issue of the confidentiality of the subpoenaed material herein.
As submitted in our previous submissions, Ms B does not fall with the protections of the Family Law Act 1975 (‘the Act’), as Ms B is not an accredited family dispute resolution practitioner or an accredited family counsellor, as defined by the Act.
Furthermore, it is submitted that the work of Ms B was not generated from a referral from an accredited family dispute resolution practitioner or an accredited family counsellor as defined by the Act.
It is submitted Ms B operates under a grant from the National Disability Insurance Scheme (‘the scheme’)
Further it is submitted that a document titled “Counselling Report” dated 3 April 2018, under the hand of Ms B has been annexed at annexure “C” to the Respondent Mother’s affidavit that was filed with this Honourable Court on 27 September 2018.
It is submitted that by the annexation of the Counselling Report, the Respondent Mother has waived any confidentiality that may have existed in relation to the subpoenaed material.
Further it is submitted that both parties are seeking a variation of the Orders made on 8 December 2010, (‘the primary Order’), and that pursuant to section 70NBA of the Act that the paramount consideration of the Court is the best interests of the child and as such the Court must have before it all the relevant information that allows for a determination of what is the best interest of the child.
It is respectfully submitted that the subpoenaed material is relevant information which must be taken into consideration in dealing with any application by the parties to vary the primary Order.
As such we submit that the subpoenaed material must be Ordered to be released from Ms B.
Further submissions on behalf of the Respondent in relation to confidentiality
The Respondent filed further submissions on 5th July 2019 regarding the confidentiality of the material under sections 10B to 10E of the Family Law Act 1975 (Cth). Those submissions were as follows:
SUBMISSIONS ON BEHALF OF THE RESPONDENT MOTHER
1) These submissions relate to an objection to a subpoena that was filed by the father’s solicitor on 11 December 2018. The mother previously filed submissions on this issue on 26 March 2019.
Authorities Relied Upon:-
Leroux & Leroux [2016] FamCA 255.
2) The parties were directed to file submissions in relation to the confidentiality of the material under sections 10B-E of the Family Law Act (“The Act”).
3) In relation to the confidentiality of the material we rely on our submissions previously filed. It appears Ms B is not a family counsellor under The Act, as such sections 10B-E would not apply.
4) Therefore, the mother maintains her objection (as supported by Ms B) on the grounds that:
a. No relevant evidence could be gleaned from the subpoena material; and
b. Producing the documents could damage the therapeutic relationship.
5) We refer to our submissions dated 26 March 2019 which address both of these issues.
6) Ms B has previously provided a report related to her sessions with [Y]. This was completed with [Y]’s informed consent, and as a result did not jeopardise derailing the therapeutic relationship between [Y] and Ms B. Further encroachment upon [Y]’s sessions with Ms B and the risk that poses to her ongoing therapeutic relationship with Ms B, and her willingness to continue to engage with any therapist, is a significant risk and one the Court should afford great weight to. In circumstances where production of subpoena documents would negatively impact the therapeutic treatment of a child the Court can, and should, exclude it. As Benjamin J noted in Leroux & Leroux [2016] FamCA 255 at [9]:
“that they [Children] can have access to a therapist and that the Court proceedings ought not to significantly impact on the needs of these children”.
7) In our submission, release of the material may derail [Y]’s therapeutic progress. As such, we submit that as no relevant evidence could be gleaned from the subpoena and could jeopardise [Y]’s therapeutic relationship, the material should not be released.
Outline of principle
For current purposes it is sufficient to note the following principles of long-standing in relation to subpoenae.
In Behrooz, the High Court stated that a subpoena could be set aside if there was no “legitimate forensic purpose” for it.[1]
[1] Behrooz v Secretary, Department of Immigration and Multicultural and Indigenous Affairs (2004) 219 CLR 486 at [3] per Gleeson CJ.
In the same case, Hayne J said, at [180] (emphasis in original):
That the documents sought by these witness summonses included documents created nearly two years before the date of the appellant's alleged offence, taken with the breadth of subjects covered by the specification of documents made in the summonses, may well suggest strongly that the summonses were not issued for the purpose of production of the documents to the court, so much as for the purpose of permitting the appellant's advisers to trawl through what was produced in the hope of generating lines of inquiry not otherwise available to support the case which it was sought to make. To decide whether that is so, however, would require a much closer analysis of the categories of documents sought, by reference to a relevant legal issue…
In my view, his Honour’s comments regarding “witness summonses” apply in essentially the same way regarding documents sought under subpoena.
In Hatton v Attorney-General (Cth) (“Hatton”), the Full Court set out general principles regarding the setting aside of a subpoena.[2] The Full Court followed what might be described as “standard and unchallenged” authority. For example, at [35] and [38], the Court said:[3]
[2] Hatton v Attorney-General (Cth) (2000) 26 Fam LR 570.
[3] There is further extensive discussion by the Full Court in Hatton at [[39] – [46].
[35] …the existence of a power in this Court to set aside subpoenae seems to have long been assumed or accepted by this Court (see in this regard: Sharpe and Dalton (1990) FLC 92-167; Epstein [1993] FamCA 45; (1993) FLC 92-384; White and Tulloch v White (1995) FLC 92-640; Re Z (1996) FLC 92-694 at 83,240; and Relationships Australia v Pasternak (1996) FLC 92-699). However, the principles which should govern the exercise of the power have not, it would seem, to date been the subject of any extensive examination.
…
[38] In Waind and Hill, Moffitt P. (with whom Hutley and Glass JJA agreed) explained that there are three steps in the procedure of having a third party bring documents to court and in their use thereafter (at 381):
“As Jordan C.J. pointed out in Small’s case ((1938) [1938] NSWStRp 29; 38 S.R. (N.S.W.) 564, at p. 574; 55 W.N. 215)and, as appears in Burchard’s case ([1891] 2 QB, 241, at pp. 247, 248) there are at least two steps in the procedure of having a third party bring documents to court, and in their use thereafter. Indeed, on a correct view, there are three steps. The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. In these three steps the stranger and the parties have different rights and the function of the judge differs.”
In particular, I note that at [48] – [49], the Full Court said (emphasis added):
[48] We are not satisfied that the distinction in the concepts of relevance (or lack thereof) which Counsel attempted to draw for the purposes of the production and inspection stages of the subpoena process has validity. Such a reading is not apparent to us on a reading of Mofitt P.’s reasons (see paragraph 40). In particular, the statement in his Honour’s judgment that “[the] only legitimate purpose of requiring production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case” (at 384) suggests that there is no distinction in the concepts of relevance to be applied in the production and inspection stages.
[49] As to the proposition that lack of relevance cannot of itself be a ground for setting aside a subpoena but rather must constitute oppression or abuse of process, we consider that whatever may have been the position at the time that Waind and Hill was decided, the present state of authority is such that lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena.
The sections of the Full Court’s judgment in Hatton outlined above, in my view, are directly relevant to the determination and resolution of the matters currently before the Court.
More recent Full Court authority, such as Unitingcare – Unifam Counselling and Mediation v Harkiss, acknowledges and relies upon the same authorities.[4]
[4] Unitingcare – Unifam Counselling and Mediation v Harkiss (2012) 46 Fam LR 12 at [69] - [72] (Coleman J).
Consideration & disposition
In the light of the authorities and principles to which I have referred, I note the following.
First, I accept the Mother’s submission that Ms B has already provided a Report (dated 3rd April 2018), which is annexed to the Mother’s Affidavit, filed 27th September 2018.
Secondly, I also accept the submission that there is a “Wishes Report”, which was directed to obtaining [Y]’s “views”. This Report, dated 24th January 2019, was released to the parties on 30th January 2019. In fact, this Report is much more than a “Wishes Report” regarding [Y]’s views. Her “views” are certainly included in it and feature predominantly. Fortunately, it also contains comments from the other children as well. I admit it into evidence as Exhibit CW1. Very curiously, neither party referred to the Report or any information in it. In my view, it is essential that the whole of the “Summary” provided by the Family Consultant be set out in full (pars.58 – 67), thus (emphasis added):
58. Each of the children expressed views about the current arrangements that reflect their age, stage of development and current respective relationships with each of their parents.
59. The children all appeared to have a close relationship with their mother, who they perceive as ensuring that the needs of her children are paramount. [X] and [Y] expressed concern about their mother’s levels of anxiety and stress, and appeared to be somewhat parentified. [Y], in particular reported some frustration with her mother’s perceived over-protectiveness.
60. [Z] appeared to enjoy spending time with her father, Ms E, and her two younger siblings, [F] and [G]. She reports a close relationship with her father, and especially with Ms E, whom she refers to as “Ms E Mum”. [Z] is closer in age to [F] and [G], and she reports that she enjoys spending time with her younger siblings, which may also explain her desire to increase the time that she spends with her father, and Ms E. At [Z]’s age, she is likely more adaptable and malleable than her teenage siblings, and therefore blends in to the father’s household more easily.
61. [Y] is adamant that she does not want to spend time with her father, and Ms E, and she did not appear distressed when she reported her wishes. However, it is possible that despite her reports, [Y] has experienced grief over the loss of a relationship with her father, and she feels powerless to resolve this situation. [Y] expressed sorrow at not having a relationship with [F] and [G]. [Y] reported she was previously required to undertake child minding tasks with [F] and [G], and she stated her concerns that [Z] will be expected to do likewise by her father and Ms E.
62. [X] expressed dissatisfaction with the current arrangements. It appears that he feels uncomfortable in the father’s home, and his relationship with both his father and Ms E, seems to cause [X] anxiety and stress. [X] appears to cope by “keeping the peace” and withdrawing from those around him. This may be the result of the confluence of [X]’s developmental stage, where he requires less rigid rules and boundaries, and the parenting skills of the adults, whose primary focus is the younger children. It may also reflect [X]’s reported social difficulties, and he may require a more sensitive approach from the adults around him.
63. If, as reported by [Y], [X] has been influenced by his father, and Ms E, to believe that a shared care arrangement is “fair”, then this may explain his desire to remain with the status quo, rather than spend less time in a situation that he finds unsatisfactory. [X] perceives that Ms E is insensitive to his changing needs, and he believes that she demonstrates a lack of respect for his personal space.
64. Whilst it is expected that the lives of the father and Ms E, necessarily revolve around the needs of small children, it appears that they are somewhat insensitive to the changing needs of the older children. They may benefit from participating in a group based parenting program that focuses on teenage children.
65. The children would likely benefit from opportunities to spend time together with their father, participating in their chosen activities, away from his household and the demands of younger children.
66. Children on the autism spectrum sometimes have unique difficulties in perspective taking, understanding other’s emotions, social reasoning and cognitive rigidity. The parental dispute may increase the negative emotional impact upon the children, due to their developmental vulnerabilities.
67. The emotional pressure on the children, of being caught in the middle of the parental dispute, is evident from their comments. [X] was most articulate in expressing that he wants the conflict to cease. [Y] appears acutely affected and copes by not spending time with her father. [Z] likely concurs with an equal shared arrangement because she perceives this as “fair” and may assist in ending the dispute. If the parental conflict continues, it will likely have negative consequences for the children’s social and emotional wellbeing and development.
The children in this matter have been the subject of regular and intense assessment over the years, including a very detailed Report from psychiatrist, Dr H, in 2010. The regular emotional pressure on the children has to stop.
Thirdly, I also accept that it is open to the parties to put specific questions to Ms B, if they so desired, to clarify anything in her Report.
Given what has been produced, and the further avenue to ask questions, I have great difficulty seeing how the Counsellor’s “notes” can or will add anything to the detailed material already before the Court. In terms of evidence, the Report of Ms B is most relevant as [Y]’s long-time therapeutic Counsellor, together with the Report from Ms J in January 2019. Put another way, in my view, given the detailed Reports before the Court, no relevant legal principle or issue has been established that would warrant the material sought under the subpoena to be produced.
Moreover, given the comments of Ms J, at par.31 of her January 2019 Report regarding [Y] having “high functioning autism”, as well as “panic disorder”, in my view it would be potentially seriously detrimental for the Father to press Ms B for her “notes.” The Father has sought to do so, notwithstanding Ms B’ Report, via the process of a subpoena. To put this as neutrally as possible – the “need” for the Father to pursue every inquiry is understandable. But personal “need” to take such action must always be tempered by prudent judgment about the possible consequences, especially for someone as delicate as [Y].
Fourthly, I further accept the Mother’s submission regarding the operation of s.69ZN of the Family Law Act1975 (“the Act”), and in particular “principle 1”, which provides that the Court “must give effect to the principles in this section”, the first of which refers to the requirement that the Court “is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.”
With the Court already having (a) a Report from Ms B, and (b) Report from Ms J, to allow the subpoena to Ms B, in my view would flout the clear instruction in Hatton (quoting earlier authority) to which I have already referred, namely:
“[the] only legitimate purpose of requiring production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case”
Given the Reports already before the Court, the utility of the documents sought by the Father could be only marginal – at best – and would, in any event, be swamped by the formal Reports already available. In my view, it clearly borders on being something of a “fishing expedition” (perhaps even a desperate one) in the hope of finding something of relevance that might not be in any of the Reports.
Because of the decision I have made regarding the lack of “relevance” of the documents sought under the subpoena, and because it approximates a “fishing expedition”, it is unnecessary to consider the other arguments advanced regarding, for example, ss.10B – 10E of the Act regarding confidentiality. Had I been required to do so, I simply observe that, having regard to the Reports already before the Court, and s.69ZN of the Act, I would also be very concerned for the Court effectively to intrude into the therapeutic relationship between [Y] and Ms B.
To state the obvious: in parenting proceedings when making a parenting Order, the over-arching principle remains the best interests of the child.[5] This basal principle must also be a relevant touchstone for other Orders, even those that are procedural and or ancillary to the primary parenting issues.
[5] See s.60CA of the Act.
The subpoena objection should be upheld.
Absent any Application being made in 14 days, I would propose making an Order that each party pay his or her own costs.
I certify that the preceding thirty-three (33) paragraphs are a true copy of the reasons for judgment of Judge Neville
Associate:
Date: 20 September 2019
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