Ireland and Dwyer

[2014] FCCA 313

FEDERAL CIRCUIT COURT OF AUSTRALIA

IRELAND & DWYER [2014] FCCA 313

Catchwords:
FAMILY LAW – Interim parenting – emotional abuse – subpoena to Relationships Australia – construction of sections 10D and 10E.

Legislation:

Family Law Act 1975, Pt.VII, div.2, ss.10C, 10D, 10E, 61DA, 69ZW

Federal Circuit Court Rules 2001, r.15A

Unitingcare – Unifam Counselling and Mediation and Harkiss and Anor [2011] FamCAFC 159
Goode and Goode [2006] FamCA 1346

Applicant: MR IRELAND

Respondent: MS DWYER

File Number: DNC 545 of 2013

Judgment of: Judge Harland

Hearing date: 20 February 2014

Date of Last Submission: 20 February 2014

Delivered at: Darwin

Delivered on: 24 February 2014

REPRESENTATION

Counsel for the Applicant: Ms Czislowski

Solicitors for the Applicant: Ward Keller

Counsel for the Respondent: Ms Bolton

Solicitors for the Respondent: Northern Territory Legal Aid Commission

Counsel for the Objector: Mr Norrington

Solicitors for the Objector: DS Family Law

PENDING FURTHER ORDER

1. That the parties be restrained from physically punishing the children.

2. That the father spend supervised time with the children at CatholicCare NT Children’s Contact Service on two occasions each week for 2 hours at times nominated by CatholicCare NT in consultation with the parties.

3. That the matter is adjourned to 15 April 2014 at 9.00am for mention.

4. That the documents produced by Relationships Australia remain in a sealed envelope and marked not to be inspected by anyone.

BY CONSENT UNTIL FURTHER OR OTHER ORDER:

1. That the parents communicate about parenting arrangements and matters:

   (a)by telephone once per week on Wednesday at 8:30pm, with the mother to place the first call, the father to place the second call and alternating thereafter;

   (b)by communication book,  text message or email; and

   (c)by telephone at any other time in the event of an emergency.

2. That each parent attend CatholicCare NT (or other organisation as mutually agreed) for not less than 10 counselling sessions each, with a view to improving their co-parenting relationship and increasing their parenting skills and to that end:

   (a)Each parent contact CatholicCare NT within 7 days and do all things reasonably necessary to commence such counselling as soon as practicable;

   (b)Counselling shall be joint or individual at the discretion of CatholicCare NT;

   (c)Each parent attend weekly or as frequently as can be accommodated by CatholicCare NT.

3. That each parent may call to communicate with the children when they are with the other parent on Sundays and Thursdays between 6.00pm and 6.30pm (NT time).

4. Each parent take all reasonable steps to ensure the children have privacy during telephone communication with the other parent including the parent not being in the same room as the child.

5. Both parties hereby restrained from transporting the children in motor vehicles unless the children are restrained in seat belts which have been fitted by properly qualified persons and the vehicle which is legal and the father must provide proof of this within 7 days.

6. Both parties restrained from exposing [Z] directly to cigarette smoke and are to take all reasonable steps to remove her from three parties engaging in such conduct.

7. Both parents must ensure that [Y] takes her asthma medication in accordance with her doctor’s directions.

8. Each parent must inform the other as soon as practicable about any significant medical or health related issues, serious incidents or accidents in which the children are involved, responsible for or witness to whilst in that parent’s care. In cases involving medical treatment, the parent must notify the other of the name and contact details of the treating medical practitioner.

9. That the parties must not discuss these court proceedings, swear, criticise or denigrate the other parent or the other parent’s family in the presence of or within hearing of the children and must take reasonable steps to remove the children from the presence of or hearing of a third party engaging in such conduct.

Notations:

A.The child [Y] prefers to speak on speaker phone.

B.Sometimes the children follow the mother around the house when on the phone and it can be difficult for the mother to then move, especially when breastfeeding.

C.The orders 3 to 11 and notations 1 and 2 are consolidated from previous consent orders made on 17 December 2013 and 10 February 2014.

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

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT DARWIN

DNC 545 of 2013

MR IRELAND

Applicant

And

MS DWYER

Respondent

REASONS FOR JUDGMENT

Introduction

1. This is an interim parenting application filed by the respondent mother seeking that previous interim parenting orders be suspended and that the father spend supervised time with the 5 children of the relationship until after the release of the family report. In the alternative she seeks that the 4 oldest children spend alternate weekends and Wednesday afternoons with the father.

2. The father seeks a week about arrangement with the 4 oldest children. In the alternative be seeks alternative weekends and Wednesdays overnights with the four oldest children and three visits a week of up to four hours with Madeline.

3. The parties lived together from September 2002 until they separated 31 July 2013. They have five children:

   a)[V], born [in] 2004, aged 9;

   b)[W], born [in] 2005, aged 8;

   c)[X], born [in] 2006, aged 7;

   d)[Y], born [in] 2009, aged 4;

   e)[Z], born [in] 2013, aged 5 months.

4. The mother remains living the home the parties and children shared during the relationship. The father moved into a unit he owns.

5. The father formed a relationship with Ms L shortly after the parties separated. They met in 2011 and were friends.  She has 3 children [A] aged 7, [B] aged 6 and [C] aged 3. She Ms L says that her lease expired and she could not afford alternate accommodation so she and the father moved in together in November 2013 earlier than they had planned.

6. The four girls share one room and the three boys share another.  This kind of living arrangement with the children seeing their father in a relationship with another woman very soon after their parents broke up involve massive adjustments for the children.  They are also adjusting to getting to know other children, including sharing rooms with them. They have to adjust to seeing their father with another woman and sharing their father with other children. The father and his partner downplay the scale of these adjustments.

7. The three oldest children have been engaged in counselling with Relationships Australia. The mother arranged for [V] to receive counselling shortly after the parties separated in July 2013. She arranged for [W] and [X] to attend in September 2013.

8. The parties tried a week about arrangement from October to December 2013. The mother says that the arrangement has not worked for the children. She says the children have told her they want to spend more time with her and her home and they have described upheavals and difficulties adjusting. One of the issues is the overcrowding in the father’s home. The father has a different view and says that the children are adjusting quite well.

9. The parents have different views about the children’s educational and medical needs.

10. The mother was served with the father’s application for a Domestic Violence Order against her on 30 November 2013. The father complains that the mother is harassing him. The mother denies this. It is listed for hearing in March 2014.

11. It is clear that currently communication and trust between the parents is poor. This is one factor that makes an equal shared care arrangement impractical at the moment. [Y] in particular is very young to be living in that type of arrangement, even though she has her older siblings with her.

12. As I indicated during the interim hearing, there are a number of reasons why I do not think a week about arrangement would be in the children’s best interests at this stage. This is ignoring the allegation of emotional abuse. The children are young and have already had several adjustments to make.

The La Loopsy Doll Incident

1. The father has not spent time with the children since the incident with [Y]’s doll in January. The father and Ms L gave [Y] a La Loopsy Doll for Christmas. The father’s evidence is that [Y] broke [X]’s headphones and has previously broken other children’s toys. He says to punish [Y] he had her to bring him the doll. The other children were there and some were giggling because [Y] was in trouble. He says that he went outside with Ms L and started up the leaf blower. He says none of the children could see what they were doing. They went back inside without the doll. [Y] was supposed to think her doll had been destroyed. He says that he told [Y] a few days later that the doll was on her bed missing her. The father says “I had hoped that thinking she has lost her favourite doll would show [Y] how it feels to have someone break something you love.”

2. Ms L supports the father’s version of events. She says that the children do not take their toys between the two homes. She says the father wanted to give the doll back to [Y] because the children went back to their mother’s home but that she talked him out of it as she thought [Y] would be upset as she would have to leave it behind.

3. The mother says that [Y] was distressed and crying on the way home from her father’s home and said “Dad and [Y] cut up my La Loopsy Doll with the chainsaw.” The mother says that spoke to the other children and they confirmed that the father got his chainsaw, started it and cut the doll up.

4. The mother says that the after the children’s next counselling session a couple of days later the children’s counsellor told the mother that they were upset about the incident with the doll.

5. The mother says that the children regularly saw the father use his chainsaw when they went camping. The mother says they know what it sounds like. She also says the chainsaw is not at her home.

6. The mother describes changes in [Y]’s behaviour since the doll incident which includes increased bedwetting and nightmare. A friend of the mother’s Ms W swore an affidavit. She says she has also observed changes in [Y]’s behaviour since the doll incident. The mother has arranged for [Y] to see a psychologist. She says [Y] is traumatised.

7. The father says that [Y]’s change in behaviour is due to [Z]’s birth and the separation not because of any trauma over the La Loopsy doll.  This is something which will need to be the subject of further evidence from the family report writer or a psychologist.

8. The mother filed a Notice of Risk of Abuse largely with respect to the doll incident. The Department of Children and Families is currently carrying out an investigation. I have made an order pursuant to section 69ZW. The information pursuant to that order should be available in 21 days before the family report is released. The family report is due to be released by the end of March 2014.

Subpoena to Relationships Australia

1. The mother’s lawyers caused two subpoenas to be issued to Relationships Australia. The first subpoena was withdrawn. The second subpoena requires Relationships Australia to produce the following:

   “All notes, records, reports and documents within the possession of Relationships Australia for the period 23 January 2013 – 30 January 2014 regarding any admission  by [V], born [in] 2004, [W], born [in] 2005 or [X], born [in] [sic]  that:

   a.   They, or any of their siblings have been exposed to family violence or:

   b.   They, or any of their siblings have been abused or at risk of abuse”

2. Mr Norrington appeared for Relationships Australia to object to production of the documents. The father supported the objection. The mother opposed it. Mr Norrington advised that there were two documents which would fall within the documents requested by the subpoena if the documents are required to be produced.

3. The mother seeks to have the documents produced. The disputes with respect to the doll incident include:

   a)Whether or not the father used a chainsaw or leafblower

   b)Whether or not the children could see what the father did to the doll

   c)The impact of this incident on the children.

4. There is no dispute that the Relationships Australia is an accredited organisation for the purposes of section 10C of the Family Law Act 1975) (“the Act”). There is also no dispute that the children engaged in family counselling which is covered by sections 10D and 10E of the Act.

5. Section 10D(2) requires a family counsellor to disclose a communication made to the counsellor if he or she believes the disclosure is necessary in order to comply with a Commonwealth, State or Territory law. This does not apply here.

6. Section 10D(3) states that the family counsellor may communicate a disclosure. This includes where parents of a child under the age of 18 consents. There is no consent here. Section 10(3)(b)(ii) enables the court to provide that consent instead.

7. Section 10D(4) sets out various circumstances where a family counsellor may disclosure information. This includes section 10D(4)(a) where a counsellor reasonably believes the disclosure is necessary to protect a child from risk of harm (whether physical or psychological).

8. The terms of section 10D(4) are clear. The family counsellor may disclose material which falls under the categories set out at (a) to (f) but cannot be compelled to. The Full Court held that this was the correct interpretation in Unitingcare – Unifam Counselling and Mediation and Harkiss and Anor [2011] FamCAFC 159 (“Unitingcore”). It is clear in this case that the family counsellor does not want to disclose anything pursuant to this provision.

9. It is then necessary to consider section 10E. Section 10E(1) provides that evidence of anything said or any admission made by or in the presence of a family counsellor, conducting family counselling is not admissible in any court.

10. Section 10E(2) provides two exceptions to subsection (1). Those exceptions are where:

    a)An admission by an adult indicating that a child under 18 has been abused or is at risk of abuse; or

    b)A disclosure by a child under 18 that indicates that the children has been abused or is at risk of abuse

    unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.

11. The father objects to the admissibility of paragraphs [13] and [14] of the mother’s affidavit filed on 10 February 2014. They set out an alleged conversation between the mother and the family counsellor where the family counsellor spoke about the children’s behaviour during therapy. It also refers to the children’s disclosure about the doll incident. Paragraph [13] of the mother’s affidavit does not fall into either exception in section 10E(2) and is not admissible. Paragraph [14] also does not fall within one of the exception because it is not a disclosure by a child or an admission by an adult. It is a hearsay conversation with a family counsellor and is not admissible.

12. The mother argues that the counsellor has waived confidentiality by telling her these things. I do not know if the counsellor is aware of what the mother has said in her affidavit. I would need to be satisfied that the counsellor agreed with the substance of what the mother has said in order to consider whether to allow those paragraphs in. It would be preferable to have an affidavit from the counsellor although I acknowledge that is highly unlikely as I suspect Relationships Australia would not allow an employee to swear an affidavit in these circumstances because of the public policy considerations.

13. Mr Norrington argues that the children’s disclosures do not fall within the exception in section 10E(2)(b) because the disclosure must be about that child not about a sibling.

14. The mother argues that the children’s disclosures to the counsellor about the doll incident fall within the exception at 10E(2) because the abuse was not just directed at [Y] but something the other siblings were exposed to. The wording of the subsection is clear in its terms. I accept that it does not extend to a disclosure about a child’s siblings but I accept the mother’s submission that the disclosure of abuse could cover the older children not just [Y] as they also witnessed the emotional abuse which is the only way to describe the father’s conduct regardless of whether the father’s or the mother’s version is correct.

15. In my view there is likely to be sufficient evidence of the admission or disclosure available to the court from other sources. These sources are the family report and material from Department of Children and Families. Until this material is available it would be premature to release the documents produced by Relationships Australia.

16. Mr Norrington argued that sections 10D and 10E of the Act operate independently of each other. He submits that s.10D is the only source of power dealing with confidentiality. Section 10E only deals with admissibility of documents. He argues that section 10D(6) supports this interpretation. He disagrees with the Full Court’s statements in Unitingcare at paragraphs [73] and [74]. He argued that these comments were only obiter. The original trial judge did not have to consider section 10D in the same manner because in the case the parties consented to the disclosure. The difficulty was that despite that consent Unitingcare refused to produce the documents.

17. Although it is not necessary for me to determine this issue as I have found that section 10E(2)(b) has not been triggered I offer the following comments. I disagree with Mr Norrington’s interpretation. It is necessary to look at the sections in their context. Sections 10D and 10E are found in Division 2 – Family Counselling. It is a principle of modern statutory interpretation that the heading of that Division may be taking into account in construction of the sections within it. Section 10 D(6) does no more that state that the disclosure by the counsellor is not admissible because of this section. [1]

    [1] Herzfeld, Perry et al, Interpretation and use of Legal Sources The Laws of Australia Thomson Reuters of [25.1.1580]

18. It would be quite artificial to look at sections in isolation from one another. In my view the comments at paragraphs [73] and [74] of Unitingcare are persuasive but it is unnecessary for me to consider this further at this stage.

19. Mr Norrington also raised public policy issues. In light of my reasons discussed above it is unnecessary for me to consider the public policy issue.

Relationships Australia’s costs of complying with the subpoena

1. Relationships Australia seeks $1,500 in costs for the subpoena argument. The mother is legally aided. I asked the mother’s lawyer Ms Bolton about the position of Legal Aid with respect to costs in situations like this. She asked for permission, which I gave to provide written submissions limited to that issue.

2. Ms Bolton says that Relationships Australia did not comply with rule 15A.11 of the Federal Circuit Court Rules 2001. This rule requires the third party to give the issuing party notice of substantial costs the third party will incur in complying with the subpoena before complying with it.  She says she was unaware that Relationships Australia was seeking costs until the interim hearing. As this formed part of the written submissions before the hearing Mr Norrington has not had the opportunity to address this.

3. Ordinarily the Northern Territory Legal Aid Commission will not pay costs on behalf of a legally aided person unless it falls within the Commission’s guidelines. The Commission does not normally pay costs at first instance unless it is satisfied that the person will suffer substantial hardship. The considerations for the Commission include the amount of costs, whether it was in the nature of a test case having the potential to benefit other litigants and the impact it will have on the Commission’s capacity to provide legal assistance in the future.

1. The mother is currently on maternity leave and has the care of five children. She has indicated that her maternity leave payments will stop next month and she anticipates applying for spousal maintenance.

2. Relationships Australia is a not-for-profit community organisation. The Legal Aid Commission is a government funded body. The subpoena issued was not an abuse of process. It was drafted very narrowly so as to attract the exception in section 10E(2)(e). In the circumstances I will not make an order for costs.

Conclusion

1. I will not grant leave to inspect the documents produced by Relationships Australia at this stage but I am also not going to set aside the subpoena either as it may be that the issue needs to be revisited later in the proceedings depending on the outcome of the family report and the section 69ZW order.

2. The family report will be released in a little over a month’s time. There are many issues which are in dispute which I cannot determine on an interim basis. The father and his partner showed an incredible lack in judgment with regards to the doll even on their own evidence. [Y] is not yet 5. She is too young to be able to understand the father’s actions as being some sort of pretence which she is supposed to learn from. It would have been entirely different if the father had taken the doll and told [Y] that she could not have the doll until she learnt how to take care of other people’s belongings. He did not do that. It is also conceivable that the older children also found the display traumatising. In my view it does not make it much better if it was a leaf blower rather than a chain saw and whether or not the children could see what the father was doing. Clearly the intent was for the children to believe the doll was destroyed.

3. The children were already vulnerable dealing with a massive amount of changes in their lives, not the least of which is their parents’ separation. The three older children were already receiving counselling. Unfortunately Relationships Australia has withdrawn its counselling services from the children until these proceedings are resolved.

4. Considering all of these factors and principles referred to in Goode and Goode [2006] FamCA 1346 and set out in Part VII of the Family Law Act 1975. I am of the view that until the family report is released the children should spend supervised time with their father at CatholicCare NT.  I am informed by the parties that CatholicCare NT can offer supervised visits on Wednesdays and Saturdays. The Wednesday times may only involve the younger two children if the only time available is during school hours. [Z] will attend these contact visits along with the 4 older children which is an increase in time for [Z]. Given [Z]’s tender age it is important that the father see her more than once a week if possible.

5. Neither party raised the issue of interim equal shared parental responsibility. Pursuant to section 61DA(3) I decline to make an order at this interim stage. I note the mother has arranged for [Y] to see a psychologist.

6. These arrangements can be reviewed after the family report is released and Department of Children and Families has produced documents pursuant to the section 69ZW order.

I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Judge Harland

Associate: 

Date:             24 February 2014