HASTINGS & MARCH - [2019] FCCA 2548

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 15^th January 2019 be upheld.
Absent any opposing Application within 14 days of the date of these Orders, being by 4^th 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 10^th 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 15^th 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 21^st 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading HASTINGS & MARCH

Details

AGLC: Hastings and March [2019] FCCA 2548
Case: [2019] FCCA 2548
Decision Date: 20 September 2019

CaseChat Overview and Summary

In the Family Court of Australia, Judge Neville considered an objection to a subpoena filed by Ms B. The dispute concerned the relevance of documents sought by subpoena in family law proceedings, particularly in the context of ongoing assessments of the children involved and the protection of therapeutic relationships.

The court was required to determine whether the subpoena amounted to an impermissible "fishing expedition" and whether a lack of apparent relevance was, in itself, a sufficient ground to set aside the subpoena. The court also considered the existing reports before it and the importance of preserving the therapeutic relationship between an older child and their counsellor.

Judge Neville upheld the objection, finding that the present state of authority permits setting aside a subpoena based on a lack of apparent relevance. The court noted that two reports had already been provided, including a comprehensive "Wishes Report" that contained the children's views and comments from other siblings. The judge considered these existing reports to be sufficient and highlighted the importance of protecting the therapeutic relationship, particularly given the children's long history of assessments and the potential for the subpoena to be oppressive.

The orders made were that the subpoena objection of Ms B be upheld and that, absent any opposing application within 14 days, each party was to bear their own costs.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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). 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.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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