HOPKINS & HOPKINS

[2015] FCCA 1200

FEDERAL CIRCUIT COURT OF AUSTRALIA 

HOPKINS & HOPKINS [2015] FCCA 1200

Catchwords:
FAMILY LAW – Children – application in a Case – subpoena – application to release documents for inspection and copying – where documents are subpoenaed from a psychologist and a school counsellor – where documents already inspected by Independent Children’s Lawyer – meaning of family counselling.

Legislation:

Family Law Act 1975 (Cth), ss.10B, 10C, 10D, 10E, 38BD, 38R, 60CA, 69ZX

Federal Circuit Court of Australia Act 1999 (Cth), ss.93D, 115
Federal Circuit Court Rules 2001, r.15A.12

Cases cited:
Kidd & London [2011] FMCAfam 1084 followed
M & D [2003] FMCAfam 354
Relationships Australia (Qld) & M [2006] FamCA 1265; (2006) FLC 93-305; (2007) 37 Fam LR 12

Applicant: MS HOPKINS

Respondent: MR HOPKINS

File Number: CSC 145 of 2011

Judgment of: Judge Scarlett

Hearing date: 27 March 2015

Date of Last Submission: 27 March 2015

Delivered at: Sydney

Delivered on: 14 May 2015

REPRESENTATION

Applicant: In person

Solicitor for the Respondent: Mr Lago

Solicitors for the Respondent: Williams Graham Carman Solicitors

Independent Children's Lawyer: Mr Newman

Solicitors for the Independent Children's Lawyer: Newman Family Law

ORDERS

1. Orders 1 and 2 made on 10 November 2014 are discharged.

2. The documents returned to the Court under subpoenas issued to Ms B, Mind Matters, and Executive Director, Catholic Education Diocese of Cairns are to be released for inspection and copying by the parties PROVIDED THAT:

   (a)Neither party is to discuss the contents of any of the documents with either of the children [X] or [Y];

   (b)Neither party is to allow either of the children [X] or [Y] access to any of the documents; and

   (c)No party is permitted to use any of the documents for any purpose other than these proceedings without the leave of the Court.  

IT IS NOTED that publication of this judgment under the pseudonym Hopkins & Hopkins is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT CAIRNS

CSC 145 of 2011

MS HOPKINS

Applicant

And

MR HOPKINS

Respondent

REASONS FOR JUDGMENT

Application

1. This is an Application by the Respondent Father for an order that would permit documents produced under subpoena to be released for inspection and copying, subject to certain safeguards. The Application is supported by the Independent Children’s Lawyer but opposed by the Applicant Mother.

Orders Sought

1. By Application in a Case filed on 6^th March 2015 the Father seeks the following orders:

   1. That orders 1 and 2 of the Orders made by Judge Willis on 10 November 2014.

   2. That the documents returned to the court under Subpoenas issued to Ms B, Mind Matters and Executive Director, Catholic Education Diocese of Cairns be released for inspection and copying by parties provided however that those copies shall not be used by either party for any other purpose whatsoever except for these proceedings, without leave of the court.

2. By her Response to an Application in a Case filed on 26^th March 2015, the mother seeks the following orders:

   1. That Orders 1 and 2 of the Orders made by Judge Willis on 10 November be upheld.

   2. That the documents returned to the Court under Subpoenas issued to Ms B, “Mind Matters” and Executive Director, Catholic Education Diocese of Cairns, be released for inspection only by the Independent Children’s Lawyer and the court appointed Family Report Writer.

   3. That at no stage, shall either parent be privy to inspect or copy any information in relation to these documents.  

Background

1. There are ongoing parenting proceedings between the parties concerning the parties’ two daughters, [X] born [omitted] 2004 and [Y] born [omitted] 2006.

2. On 10^th November 2014, her Honour Judge Willis made Orders by consent providing that:

   1. The documents returned to the Court under subpoena issued to Ms B, Mind Matters shall be released for inspection and copy by the Independent Children’s Lawyer only.

   2. The documents returned to the Court under subpoena issued to the Executive director, Catholic Education Diocese of Cairns shall be released for inspection and copy by the Independent Children’s Lawyer and inspection only by the Solicitors for the parties.

   3. Leave is granted to the Independent Children’s Lawyer to provide to the Family Report Writer copies of any and all documents returned to the Court under subpoenas issued to Ms B, Mind Matters and Executive Director, Catholic Education Diocese of Cairns.

3. The Independent Children’s Lawyer duly provided copies of these documents to Ms P, a psychologist, who prepared a Report for the Court. This Report is annexed to an affidavit by Ms P dated 24^th February 2015.

4. The Report referred to the case notes of Ms B on four separate occasions[1] and to counselling notes of school counsellor Ms R on one occasions.[2]

   [1] At paragraphs [110], [197]-[200] and [216]

   [2] At paragraph [201]

5. The father filed his Application in a Case on 6^th March 2015, supported by an affidavit sworn or affirmed on 5^th March 2015.

6. The mother filed her Response to an Application in a Case and an affidavit on 26^th March 2015.

Submissions

1. The Independent Children’s Lawyer, Mr Newman, told the Court he supported the Application for the release of the documents. In answer to the concerns of the Bench as to whether the release of the documents was in the best interests of the children, noting the issues of the children’s privacy, Mr Newman said that he had inspected the subpoenaed material and there was little about school counselling in the notes subpoenaed from the Catholic Education Diocese and there was little about the children per se in the notes of Ms B, the psychologist.

2. The Mother opposed the release of the information, concerned about the effect on the children of their father having access to any information about their counselling with Ms B or with the school counsellor.

3. Her affidavit sworn 26^th March 2015 essentially contains her submissions.

4. At paragraph [4] of the affidavit, the mother deposed that on 18^th March she received a copy of draft Consent Orders signed by the Father and the Independent Children’s Lawyer. That document forms Annexure “C” to her affidavit.

5. The Mother complained that she was advised in the email from the Husband’s solicitor “that if I did not consent to the said Consent Orders, costs would be awarded against me if the matter went to hearing, should their petition be successful. Annexed hereto and marked with the letter “B” is a copy of this email.”[3]   

   [3] Affidavit of Ms Hopkins 26.3.2015 at [5]

6. The letter in fact says (relevantly):

   Can you please advise if you will agree to the orders contained in the Consent Orders. If not we intend to proceed with our Application in a Case which is listed for hearing at 10:00 am on Friday 27 March 2015 and will rely upon this letter and earlier correspondence in support of an application for costs.[4]

   [4] Ibid Annexure “B”

7. The Mother goes on to submit in her affidavit the reasons why she opposes the release of the documents. Due to an apparent clerical error, the numbering of the paragraphs of the Mother’s affidavit goes from 1 to 7 and then recommences at 1. The relevant paragraphs are the second paragraphs 1 and 2 of the affidavit on page 2:

   1. In my capacity as a [omitted], I have witnessed the devastating and often tragic consequences that arise when a confidential relationship between a counsellor/psychologist and a student – who have they have trusted implicitly – has been breached by a parent. The fall-out can be fatal at such a tender age and often irreversible.

   2. The Respondent claims that he will keep our daughters’ “secrets” to himself, however our litigation history has proven otherwise.[5]

   [5] Ibid at page 2 [1]-[2]

8. For the Father, Mr Lago submitted that the relevance of the material sought to be inspected was due to the issue of the Mother’s mental health, as it may assist in determining what further evidence should be put before the Court. The relevance of the documents, he submitted was to the Mother’s mental health and her emotional manipulation of the child [X].

9. Mr Lago tendered a detailed written submission to the Court.

10. In that submission, he helpfully set out the relevant law, which is summarised:

    1. Persons who inspect or copy documents under subpoena may only use those documents for the purpose of the proceedings and they must not disclose the contents to any other person without the court’s permission.[6]

    2. In proceedings under Part VII of the Family Law Act 1975, the court is required to “regard the best interests of the child as the paramount consideration” and section 69ZX of the Family Law Act 1975 lists the court’s general duties and powers with respect to evidence.

    3. The court must balance a party’s “right to place all relevant material before a court with the duty to protect privileged communication from improper disclosure.”[7]

    4. The purpose of viewing subpoenaed material is to allow an individual “to make an informed decision as to whether or not they should seek to use that material in evidence”.[8] Nonetheless, the admissibility of that material must be demonstrated by the party wishing to have it admitted into evidence and “the ultimate test…for the admissibility of documents in evidence is their relevance to the proceedings before the Court.”[9]

    5. Section 10D of the Family Law Act 1975 deals with the confidentiality of communications in family counselling.

    6. The court in the matter of Kidd & London [2011] FMCAfam 1084 considered an objection to the release of notes and reports prepared by a school counsellor arising from counselling of children and it was held, at Paragraph 7, that “meetings between the children and the school counsellor do not come within the definition of family counselling for the purposes of the Family Law Act.”

    [6] Rule 15A.12(2) – Federal Circuit Court Rules

    [7] Relationships Australia (Qld) & M (2006) FLC 93-305 at 81,139

    [8] M & D [2003] FMCAfam 354 at [6]

    [9] M & D [2003] FMCAfam 354 at [7]

11. Essentially, it is the Father’s submission that:

    a)Portions of the subpoenaed documents have been admitted into evidence through the Family Report, and it follows that the parties should be given the opportunity to inspect these documents in order to view the evidence in the Family Report in its totality;

    b)The documents are directly relevant as they relate to the children;

    c)The counselling in these instances does not fall within the category of family counselling as described in s.10B of the Family Law Act 1975 (Cth) and therefore does not attract the confidentiality afforded by the Act;

    d)The Father and the Independent Children’s Lawyer have already consented to orders allowing the parties, in the company of their legal representatives, to inspect and copy the documents;

    e)The Mother’s objections have no factual basis; and

    f)In inspecting the documents, both parties can be required to give an undertaking not to discuss the documents with any other person unless by way of an order of the Court or use the information for any other reason except the Court proceedings.

Division 2 of Part II of the Family Law Act

1. Division 2 of Part II of the Family Law Act 1975 deals with issues relating to family counselling.

2. The term “family counselling” is defined in s.10B of the Act, which says:

   10B Family counselling is a process in which a family counsellor helps:

   (a)one or more persons to deal with personal and interpersonal issues in relation to marriage; or

   (b)one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:

   (i)     personal or interpersonal issues;

   (ii)    issues relating to the care of children.

3. The term “family counsellor” is defined in subsection 10C(1) of the Act as:

   10C(1)  A family counsellor is:

   (a)a person who is accredited as a family counsellor under the Accreditation Rules; or

   (b)a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph; or

   (c)a person who is authorised to act under section 38BD, or engaged under subsection 38R(1A), as a family counsellor; or

   (d)a person who is authorised to act under section 93D of the Federal Circuit Court of Australia Act 1999, or engaged under subsection 115(1A) of that Act, as a family counsellor; or

   (e)a person who is authorised by a Family Court of a State to act as a family counsellor.

4. Subsection 10D(1) provides:

   10D(1)  A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.

5. Subsection 10E(1) of the Act provides that evidence of anything said, or any admission made, to a family counsellor or a professional person to whom the family counsellor has referred a person is inadmissible in evidence.

Conclusions

1. The Independent Children’s Lawyer and the Father have now signed a Minute of proposed consent orders in which they consent to orders being made in the following terms:

   1. That orders 1 and 2 of the Orders made by Judge Willis on 10 November 2014 be discharged.

   2. That the documents returned to the court under Subpoenas issued to Ms B, Mind Matters and Executive Director, Catholic Education Diocese of Cairns be released for inspection and copying by the parties provided however that:

   (i)the parties will not discuss the contents of the documents with the children;

   (ii)the parties will not allow the children access to the documents; and

   (iii)the copies shall not be used by either party for any other purpose whatsoever except for these proceedings, without leave of the court.

2. The Mother has not signed this document and does not consent to these proposed Orders.

3. The relevance of the Father’s request for access to the documents can be summarised as:

   a)the documents have already been provided to Ms P, the writer of the Family Report, who has quoted from parts of those documents in her Report, and it must follow that the parties should have the opportunity to view these documents in their entirety; and

   b)the Mother’s mental health is an issue in the proceedings.

4. The Mother’s concern is that the children may be harmed by their father having access to material about them.

5. Dealing first of all with the documents produced by the Catholic Education Diocese of Cairns, it has been held in Kidd & London[10] (at [7]) that meetings between children and a school counsellor do not come within the definition of family counselling for the purpose of the Family Law Act and, therefore, the prohibition under s.10E of the Act does not apply. This finding was made notwithstanding the claim made by the Director of Counselling and Family Services at the particular agency that it was gazetted under the Family Law Act[11]. It has not been claimed here that school counsellors employed by the Diocese are either “accredited as a family counsellor under the Accreditation Rules” (s.10C(1)(a) or are “authorised to act on behalf of an organisation designated by the Minister for the purposes of” paragraph (b) of subsection 10C(1).

   [10] supra

   [11] Supra at [2]

6. It is significant that Order (2) made on 10^th November 2014 permitted inspection of the documents produced by the Catholic Education Diocese of Cairns by the solicitors for the parties. Presumably, the Father’s solicitor has already availed himself of the opportunity to read the material.

7. The Independent Children’s Lawyer told the Court that, from his reading of the documents, there was not much at all about school counselling. This accords with my own view, after having read the material.

8. It is unfortunate that the Mother is not legally represented, as that means that she will need to read this material herself, if the Court grants leave. This is one of the difficulties where a party is self-represented, but the need for the Court to have sufficient evidence to make a decision in accordance with the best interests of the children may have to take precedence over this.

9. The material from Ms B is in a slightly different situation. On my reading of the material, I have formed the view that there is much more about one of the children than in the school counsellor’s notes. However, it has not been put to the Court that Ms B comes within the definition of a family counsellor in s.10C(1).

10. The fact that the Independent Children’s Lawyer consents to this material being made available is, to my mind, a strong argument in favour of its release. The orders proposed by the Independent Children’s Lawyer appear to me to offer a satisfactory way of safeguarding the children’s privacy and I propose to make orders along those lines.   

I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Scarlett

Associate: 

Date:  14 May 2015