Kenley Mair and Grieves & Ors

[2022] FCWA 163

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: KENLEY MAIR and GRIEVES & ORS [2022] FCWA 163

CORAM: TYSON J

HEARD: 29 JUNE 2022

DELIVERED : 4 AUGUST 2022

FILE NO/S: 491 of 2021

BETWEEN: MS KENLEY MAIR

Applicant

AND

MR GRIEVES

First Respondent

AND

MS MAIR

Second Respondent

AND

ORGANISATION A

Objection to Subpoena

Catchwords:

FAMILY LAW – PRACTICE & PROCEDURE – Objection to subpoena – Where the mother filed a subpoena to [Counselling Service A], operated by [Organisation A] – Where [Organisation A] objected to the production and inspection of documents pursuant to s 49 of the Family Court Act 1997 (WA), amongst other grounds – Where the child's engagement with [Organisation A]’s service constitutes family counselling – Where the mother, the father and the Independent Children's Lawyer seek the objection be dismissed – Where the family counselling has been undertaken on the basis it was confidential – Where the subpoena is set aside – Case turns on its own facts

Legislation:

Evidence Act 1906 (WA)
Evidence Act 1995 (Cth)
Family Court Act 1997 (WA)
Family Court Rules 2021 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Mr Beckerling
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Did not participate
Objection to Subpoena	:	Mr Hannan
Independent Children's Lawyer	:	Ms Thomas

Solicitors:

Applicant	:	Butlers Lawyers & Notaries
First Respondent	:	Self-Represented Litigant
Second Respondent	:	Savannah Legal Barristers & Solicitors
Objection to Subpoena	:	Lavan
Independent Children's Lawyer	:	Paterson & Dowding

Case(s) referred to in decision(s):

Choat & Grendel [2018] FamCA 579

Chrystie & Dellas [2021] FamCA 628

Crawford & Sisinis and Anor [2014] FamCA 912

Darley & Darley [2020] FamCAFC 4

Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648

Fletcher and Fletcher [2022] FCWA 149

Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290

Hardy & Levesque [2019] FCCA 377

Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038

Kyrkos & Malkin [2020] FamCA 649

Mandic v Phillis (2005) 225 ALR 760

Merrill & Burt [2015] FamCA 159

National Employers’ Mutual General Association Ltd v Waind and Hill (1978) 1 NSWLR 372

Prefumo v Bradley [2011] WASC 251

R v Young (1999) 46 NSWLR 681

Riemann & Riemann [2017] FamCA 318

Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38

Smith & Duke (2015) 54 Fam LR 221

Unitingcare - Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476

Vissell & Vissell (2021) FLC 94-020

TYSON J:

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES' NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Kenley Mair and Grieves & Ors has been approved by the Family Court of Western Australia pursuant to s 243(8)(g) of the Family Court Act 1975 (Cth).

This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2021 (WA).

1The mother, [Ms Kenley Mair], and the father, [Mr Grieves], are involved in parenting proceedings concerning their three children [Child A], born in 2015, [Child B], born in 2017, and [Child C], born in 2020. An Independent Children’s Lawyer (“ICL”) has been appointed to represent the children’s interests.

2The parents were not married and accordingly, these proceedings are determined pursuant to the Family Court Act 1997 (WA) (“the Act”).

3[In] February 2022, the mother caused a subpoena to be issued to [Counselling Service A]. The subpoena seeks “all documents and files, including records, notes, correspondence, memos, reports, letters and any mental health reports and the like regarding [Child A]” from 1 January 2020 until the date of compliance.

4Counselling Service A is a counselling service provided by [Organisation A] and properly, the subpoena ought to have been directed to Organisation A. No objection was raised with respect to the named recipient of the subpoena.

5[In] April 2022, Organisation A filed a Notice of Objection to the subpoena on three grounds, namely:

1.The documents requested relate to the provision of family counselling as defined in [s]ection 47 of the Family Court Act 1997 (WA) … or [s]ection 10B of the Family Law Act1975 (Cth) … As such, an objection is raised pursuant to [s]ection 49(1) [of the Family Court Act 1997 (WA)] or [s]ection 10D(1) of the [Family Law Act 1975 (Cth)].

2.Paramountcy principle – [s]ection 66A of the [Family Court Act 1997 (WA)] or [s]ection 60CA of the [Family Law Act 1975 (Cth)].

3.Public interest immunity.

6The proceedings came before the Court [in] May 2022, when a Minute of Consent Orders was handed up, signed by the mother’s solicitor, the ICL, and [Ms A] on behalf of Organisation A. The Minute was not agreed to by the father. The Minute sought to extend the time for compliance, “disallow” Organisation A’s objection, and provided for the ICL and the Single Expert Witness only to inspect the subpoenaed documents.

7Following hearing from the parties, including Ms A, I ordered if Organisation A maintained an objection to the subpoena, they were to file and serve an affidavit in support of the objection, and adjourned the objection. Organisation A have since filed an affidavit of Ms A [in] June 2022, in support of the objection, together with extensive and helpful written submissions.

8When the matter returned to Court [in] June 2022, the Court was advised the objection required determination. Each of the parties confirmed they were ready to make submissions and each had the opportunity to do so, at length. I was satisfied that course was appropriate, where the Court was advised the Single Expert Witness was waiting determination of the objection, before finalising her report.

BACKGROUND FACTS

9Before considering the objection, it is helpful to put the application in context.

10The mother and father commenced cohabitation [in] June 2011, and separated [in] December 2020. The parents have three children, namely, Child A, Child B, and Child C. Child A is six, Child B is five, and Child C will shortly be two years old. The children presently live with the mother, and spend time with the father, pursuant to orders.

11In January 2021, the mother commenced parenting proceedings, alleging the father had perpetrated acts of family violence towards her and the children, and the children were at risk of harm as a consequence of the father’s use of illicit substances and alcohol, coupled with his mental health issues.

12In the mother’s Case Information Affidavit filed 20 January 2021, she deposed to the father being unable to control his temper, regularly screaming and yelling at the children, and using extreme physical discipline. She deposed the father was emotionally abusive towards Child A, including continually belittling and lecturing her, resulting in Child A crying uncontrollably, and requiring the mother to intervene. The mother deposed the father had choked Child B when attempting to discipline her.

13The mother deposed to an incident in [late] 2020. The father contacted the mother, in tears, and admitted to having hit Child A. The mother deposed to seeing Child A crying and hiding from the father, and to contacting the maternal grandmother to attend on Child A, while the mother was in hospital with Child C. The mother deposed the father had hit the children on previous occasions, and cried “when he has taken it too far”, stating this was the first occasion Child A had reacted in that manner. The father subsequently sent a text message to the maternal grandmother, apologising for hitting Child A.[1]

[1] The mother's Case Information Affidavit filed 20 January 2021, paragraph 8.

14In the father’s Case Information Affidavit filed 12 February 2021, he deposed there were no risks of family violence.[2] He denied posing any risk to the children, and denied having acted aggressively towards the children, or yelling or disciplining them in anger.[3]

[2] The father's Case Information Affidavit filed 12 February 2021, paragraph 8.

[3] The father's Case Information Affidavit filed 12 February 2021, paragraph 30.

15At the Case Assessment Conference in May 2021, the father acknowledged experiencing substance abuse problems with respect to alcohol and cannabis. He admitted to hitting Child A in December 2020, but otherwise denied the mother’s allegations. The Consultant considered the father likely underestimated the impact of his anger and aggression upon the children.

16The parties are presently polarised in their proposals. The mother seeks an order for sole parental responsibility for decisions concerning the children’s education and health, and otherwise an order for shared parental responsibility. She seeks permission to relocate the children to live in [State A].[4] The father seeks an order for equal shared parental responsibility, for the children to live with the mother, with orders for the children to spend time with him, on a gradually increasing basis, until the children spend alternate weeks in each parent’s care.[5] He seeks the children remain in Western Australia.

[4] See the mother's Amended Form 1 Initiating Application filed 4 May 2021.

[5] See the father's Amended Form 1A Response to Initiating Application filed 25 June 2021.

17In July 2021, orders were made by consent, for the appointment of [Dr B] as the Single Expert Witness. The ICL advised the Court the Single Expert Witness wished to either speak with the relevant counsellor at Organisation A, or alternatively, have access to the documents sought pursuant to the subpoena.

18The proceedings are listed for a Readiness Hearing in October 2022.

WHAT IS ORGANISATION A’S EVIDENCE?

19Ms A is the coordinator of counselling, family domestic and sexual violence services at Organisation A. The salient aspects of Ms A’s evidence are as follows:

(a)Child A was referred to Counselling Service A, which offers counselling for children and women who have been the victims of family and domestic violence, or who are family members of victims, or have otherwise been exposed to family and domestic violence. The program aims to assist victims and provide support in dealing with trauma associated with experiencing family and domestic violence, to enable participants to develop a sense of self, which is often destabilised as a consequence of the trauma experienced, and to address behaviours which may be the result of being exposed to violence, including signs of imitating violence or submissive behaviour. The outcomes are achieved through engaging in a range of therapies, including play, narrative, art, and behavioural therapy.[6]

[6] Affidavit of Ms A filed 17 June 2022, paragraphs 9–12.

(b)Organisation A’s services are provided in a neutral and secure environment, in circumstances where a child’s home has become an unstable place for them.[7] A feature of Counselling Service A is to allow children to receive family counselling in relation to the trauma of family violence “without fear that their confidentiality would be breached, particularly in circumstances where parents can sometimes be perpetrators of family violence”.[8]

(c)During the intake process, a consent form and release of information form is signed by the parent on behalf of themselves, and the child attending the service.[9] The consent form includes a notation that information from child only sessions will only be conveyed to a child’s parents and/or carers upon the relevant child’s consent, or at the discretion of the relevant practitioner.

(d)The confidentiality of the process is also explained to child/ren attending the program, at an age-appropriate level, and it is an essential component of the intake process that the child/ren provide acknowledgement, if they can do so.[10]

(e)Organisation A treat all information with respect to a child’s participation in the program as confidential, including all intake details, disclosures of trauma, art made by the child (if applicable), counselling notes, and any internal and external communications.[11]

WHAT IS ORGANISATION A’S POSITION?

[7] Affidavit of Ms A filed 17 June 2022, paragraph 13.

[8] Affidavit of Ms A filed 17 June 2022, paragraph 15.

[9] Affidavit of Ms A filed 17 June 2022, paragraph 16 and Annexure B.

[10] Affidavit of Ms A filed 17 June 2022, paragraph 17.

[11] Affidavit of Ms A filed 17 June 2022, paragraph 18.

20Organisation A seek the subpoena be set aside.

21Counsel for Organisation A observed Organisation A are not a party to the substantive proceedings and as such, could only make limited submissions with respect to the legitimate forensic purpose of the subpoena.

22If the Court is satisfied of the legitimate forensic purpose, Organisation A object to the subpoena on a number of bases, including (1) the paramountcy principle, (2) public interest immunity, and (3) the documents sought by subpoena capture confidential communications, in the context of a therapeutic relationship between Child A and her counsellor.

23Counsel submitted the documents sought capture confidential communications between Child A and her counsellor. While Child A is only six years old, she needs agency, and the relevant statutory provisions are premised upon that agency. Organisation A's counsel described Organisation A's status as a trusted confidant.

24Organisation A submit regardless of the circumstances of this case “as a general principle, the confidential nature of the services provided by [Organisation A], and the nature of the information likely to be imparted by vulnerable persons (especially children) during the course of such services, supports the exercise of the discretion to set aside the [s]ubpoena”.[12] Organisation A also refer to the importance of confidentiality to maintain an effective therapeutic relationship, as recognised.[13]

[12] Organisation A’s outline of submissions filed 27 June 2022, paragraph 36.

[13] See Kyrkos & Malkin [2020] FamCA 649 at [26].

25Counsel submitted the services provided by Organisation A to Child A, and the documents the subject of the subpoena, fell within ss 47 to 50 of the Act. While recognising those provisions dealt with the admissibility of documents at trial, as opposed to production of the documents on subpoena, counsel noted the equivalent provisions under the Family Law Act 1975 (Cth) had been relied upon as the basis upon which to set aside subpoena.[14]

[14] Organisation A’s outline of submissions filed 27 June 2022, paragraph 47.

26Counsel also relied upon s 20C of the Evidence Act 1906 (WA) (“the Evidence Act”), conceding it too was directed towards adducing evidence at a hearing. Counsel submitted the section should guide the scope of permissible compulsory production of documents.

27It was submitted s 50 of the Act, and s 20C of the Evidence Act require the Court to adopt a similar approach, with respect to the confidential communications between a child and that child’s counsellor. To require Organisation A to produce documents pursuant to subpoena, which would likely be inadmissible at trial, could be considered oppressive, or an abuse of process.

28Counsel also relied on the paramountcy principle as contained in s 66A of the Act, while observing the divergence in authority as to whether the principle applies directly to an objection to subpoena.[15] Section 202B of the Act brings into play the interests of the children in the conduct of the proceedings, and s 37 sets out the principles which the Court is to have regard to in conducting child-related proceedings, including the need to protect the rights and welfare of the child, which further supports the Court exercising its discretion in favour of setting aside the subpoena.

[15] Crawford & Sisinis and Anor [2014] FamCA 912 at [60]; Hardy & Levesque [2019] FCCA 377 at [61].

29Counsel submitted public interest privilege applies to the documents the subject of the subpoena. Counsel acknowledged there were authorities which support the existence of the immunity as a basis to resist production of documents pursuant to subpoena with respect to a therapist's notes,[16] together with cases which do not support that proposition.[17]

[16] Smith & Duke (2015) 54 Fam LR 221 at [36]–[37], [42]–[49], [53]; Choat & Grendel [2018] FamCA 579 at [14]–[15]; Merrill & Burt [2015] FamCA 159 at [36], [38]; Hardy & Levesque (supra) at [48]; Crawford & Sisinis and Anor (supra) at [55].

[17] Crawford & Sisinis and Anor (supra) at [65]; Riemann & Riemann [2017] FamCA 318 at [95]; Choat & Grendel (supra) at [10]–[11], [17]–[18]; Kyrkos & Malkin (supra) at [27]; Chrystie & Dellas [2021] FamCA 628 at [20].

30The Court was directed to the Victorian Court of Appeal decision of Royal Women’s Hospital v Medical Practitioners Board of Victoria (2006) 15 VR 22, to support the proposition public interest privilege only applies to high-level documents relating to the conduct of government functions.

31Further, reference was made to the decision from the New South Wales Court of Criminal Appeal in R v Young (1999) 46 NSWLR 681, to the effect the public interest immunity does not extend to the relationship between a therapist and patient. Counsel also referred to the decision of Corboy J in Prefumo v Bradley [2011] WASC 251 at [79] where his Honour observed the weight of authority, “particularly for a judge at first instance”, was against the recognition of public interest privilege with respect to such documents.

32Counsel submitted if the Court was not prepared to set aside the subpoena, then an order should be made[18] to not permit any party to inspect the documents, pending determination at trial of a foreshadowed application pursuant to s 20C of the Evidence Act.

[18] Organisation A’s outline of submissions filed 27 June 2022, paragraph 69.

33Alternatively, they proposed Organisation A be relieved from the obligation to comply with the subpoena, with Organisation A being invited to provide an undertaking, to provide limited disclosure setting out information concerning Child A’s counselling to the Single Expert Witness, with all parties then having liberty to apply. Counsel made it clear the primary and preferred position, was for the subpoena to be set aside, and asserted should documents relating to Child A’s confidential counselling be made available only to the Single Expert Witness, and/or the ICL, a number of potential problems arise. Firstly, the Single Expert Witness may refer and rely on the statements made by Organisation A in the Single Expert Witness report, which would likely lead to the parties seeking access to the documents. Secondly, if questions were put to the Single Expert Witness in cross‑examination with respect to those matters, that may lead to calls for the documents or notes to be produced. In effect, Organisation A submitted there was no value in “kicking this issue down the road”.

WHAT IS THE POSITION OF THE OTHER PARTIES?

34The other parties seek the objection be dismissed, and leave be granted to the Single Expert Witness and the ICL only, to inspect the documents. Alternatively, it was proposed if the counsellor at Organisation A was prepared to speak with the Single Expert Witness, that compliance with the subpoena may not be pressed.

35The mother, the father, and the ICL each submit the documents sought pursuant to the subpoena have a legitimate forensic purpose, and are relevant to the parenting proceedings. They emphasised the desire of the Single Expert Witness to have access to the documents sought pursuant to the subpoena, or alternatively, the opportunity to speak with Child A’s counsellor.

36Counsel for the mother referred to Ms A’s consent to the Minute tendered [in] May 2022, with respect to compliance with the subpoena and submitted there was ambiguity with respect to Organisation A’s current position. On the basis of Ms A’s agreement, the mother’s counsel submitted the Court should not be persuaded to set aside the subpoena, and submitted the Court could restrict access to the documents to the other parties, to address any concerns with respect to maintaining confidentiality, including the potential for redactions by the Court or the ICL.

37The mother’s counsel submitted a strict interpretation of s 49(3) of the Act was wholly impracticable, and asserted where a child was receiving counselling, there was inevitably disclosure by the counsellor of whether the children required further counselling, simply from the counsellor advising the parents about whether further appointments were required.

38Counsel for the mother and the ICL observed both parents now consented to Organisation A’s disclosure of communications on behalf of Child A. The ICL submitted the parents’ agreement should provide the Court with some assurances with respect to limiting any potential adverse impact upon Child A, coupled with the orders which prevent the parties from discussing the contents of the Single Expert Witness’s report with the children.

39The ICL referred to the orders made appointing the Single Expert Witness, which permitted the Expert to liaise with “any person in relation to the welfare of the children”.[19] The ICL submitted absent information from Organisation A, the Expert’s report would contain “blind spots”.

[19] Pursuant to order 3 of the orders made by consent [in] July 2021 appointing the Single Expert Witness.

40The ICL agrees with the submissions made by Organisation A’s counsel regarding the importance of Child A having agency. She submits that is achieved through the Court having the best available evidence, to enable the Court to make parenting orders which are in Child A’s best interests.

41The ICL referred to the terms of reference to the Single Expert Witness, which required Dr B to, amongst other matters, comment on how the current dispute was impacting upon Child A, comment on Child A’s relationship with each parent, provide recommendations for the children’s future living and spend time arrangements, in addition to making recommendations with respect to any future therapy for either parent, and the children. The ICL submitted the documents captured by the subpoena would likely be of assistance to the Single Expert Witness in responding to those terms, and could provide valuable insight and information, not otherwise available. Absent access to the documents sought pursuant to the subpoena, there would be missing relevant information available to the Single Expert Witness, and by extension, the parties and the Court.

42The father supported the submissions of the mother’s counsel, and the ICL.

SUBPOENA

43The relevant legal principles may be briefly stated. The Court may issue subpoena for the production of documents.[20]

[20] Family Court Rules 2021 (WA) r 246(1)(a).

44The party seeking to uphold a subpoena bears the onus to demonstrate there is a legitimate forensic purpose in seeking production of the documents identified in it.[21] Put differently, in this case, the mother bears the obligation of establishing a reasonable possibility the documents will materially assist her case, and the relevance of the documents to the issue which the subpoena relates, and the circumstances of the case as a whole.[22]

[21] Santos Ltd v Pipelines Authority of South Australia (1996) 66 SASR 38.

[22] See Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648 at [13].

45A legitimate forensic purpose will be established if a document gives rise to a line of enquiry which is relevant to factual issues at trial and is usually established by demonstrating the documents sought have an apparent relevance to the issues in the substantive proceedings.[23]

[23] Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038.

46“Apparent relevance” refers to adjectival, as distinct from substantive relevance,[24] often expressed as a consideration of whether the documentation called for could possibly throw light on the issue in the substantive proceedings.[25]

[24] National Employers’ Mutual General Association Ltd v Waind and Hill (1978) 1 NSWLR 372.

[25] Mandic v Phillis (2005) 225 ALR 760 at [36].

47Relevance in the context of subpoenas is less stringent than in the context of the admissibility of evidence. The objective must be to assist the parties and the Court in the determination of the issues in dispute. The test for relevance has been considered in a number of cases. The Full Court of the Family Court (as it was then known) comprising of Ainslie‑Wallace, Watts and Tree JJ, in Vissell & Vissell (2021) FLC 94‑020, recently considered the question of subpoena and stated:

47.As long ago as 1938 in Commissioner for Railways v Small (1938) 38 SR (NSW) 564 (“Small’s case”), Jordan CJ said at 573:

A writ of subpoena duces tecum may be addressed to a stranger to the cause or to a party. If it be addressed to a stranger, it must specify with reasonable particularity the documents which are required to be produced … It is not legitimate to use a subpoena for the purpose of endeavouring to obtain what would be in effect discovery of documents against a person who, being a stranger, is not liable to make discovery …

48.His Honour continued and, albeit in the context of discussing subpoenas directed to the parties to the cause, said at 575:

… A party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of “fishing”, i.e., endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all … Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant.

49.Many years later in National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 (“Waind”), Moffitt P considered the use of subpoenas to third parties as “discovery” and after referring to Small’s case, said at 382:

… Of course it may be that the term of a subpoena are so wide that it is oppressive, but this is not because it is used for “discovery” in the sense used in Small’s case and Burchard’s case, but because it imposes an onerous task on a stranger to collect and produce documents many of which can have no relevance to the litigation …

(footnotes omitted).

50.In the following paragraphs, Moffitt P sets out the “steps” involved in the process of production and inspection of documents produced under a subpoena and in considering the role of the judge and releasing documents to the parties said at 384:

… It is true that, in the exercise of the power in relation to the subpoena, the invasion of the rights of a third party have been jealously guarded. It is accepted that the document should not go beyond the judge against objection of the owner unless there is a valid reason to do so. It is clear that it can only be legitimate to do so, so far as is necessary in the proper conduct of the litigation …

51.And his Honour further said:

… So far as factual matters are concerned, the proper conduct of the litigation can only be that which fairly leads to the introduction of all such evidence as is material to the issues to be tried, and the testing of that evidence by the accepted procedures of the court. The only legitimate purpose of requiring the production and permitting the inspection, of a stranger’s documents can be to add, in the end to the relevant evidence in the case …

52.So too in Hatton v Attorney-General of Commonwealth of Australia & Ors (2000) FLC 93-038, the Full Court there rejected the submission that relevance, per se, did not form a basis for challenging a subpoena but rather recourse must be had to concepts of oppression or abuse of process. The Full Court at [49] concluded that “lack of apparent relevance will be a sufficient ground in itself to set aside a subpoena”.

48For a subpoena to be validly issued, there must be some connection between the documents and the issues before the Court.[26]

CONFIDENTIAL FAMILY COUNSELLING

[26] Darley & Darley [2020] FamCAFC 4 (Kent J, sitting as a single judge of the Full Court of the Family Court of Australia (as it then was)).

49Section 47 defines family counselling, for the purposes of the Act, as a process in which a family counsellor helps one or more persons, including a child, who are affected, or are likely to be affected, by the breakdown of a relationship covered by this Act to deal with personal and interpersonal issues and/or issues relating to the care of children.

50It was not in dispute that Organisation A has, at all material times, been a designated organisation within the meaning of s 48 of the Act.[27]

[27] Affidavit of Ms A filed 17 June 2022, paragraph 8 and Annexure A.

51The confidentiality of communications in family counselling is contained in s 49 of the Act. Section 49(1) of the Act mandates the non-disclosure by a family counsellor of any communication made to the counsellor whilst conducting family counselling “unless the disclosure is required or authorised by this section”. Thereafter, s 49 identifies circumstances in which a family counsellor may disclose communications, at their discretion, including where the disclosure is reasonably necessary to protect a child from harm, prevent or lessen a serious threat to life or health or property of a person, report the commission, or preventing the likely commission, of an offence involving violence or a threat of violence, to assist the independent children’s lawyer to properly represent the child, or where the disclosure relates to research relevant to families.[28]

[28] Family Court Act 1997 (WA) s 49(4)–(5).

52A family counsellor may disclose a communication if consent to the disclosure is given, and in the case of a child, consent is required from each person who has parental responsibility for the child, or a court.[29]

[29] Family Court Act 1997 (WA) s 49(3)(b).

53Notably, s 49(6) of the Act provides that evidence which would be inadmissible because of s 50 is not admissible because of a requirement or authorisation of its disclosure. Section 50 of the Act provides as follows:

50. Admissibility of communications in family counselling and in referrals from family counselling

(1)Evidence of anything said, or any admission made, by or in the company of ––

(a)a family counsellor conducting family counselling; or

(b)a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person,

is not admissible ––

(c)in any court (whether of a kind referred to in section 8(a) or (b) or otherwise); or

(d)in any proceedings before a board, tribunal or person authorised to hear evidence.

(2)Subsection (1) does not apply to ––

(a)an admission by an adult that indicates that a child who has not attained the age of 18 years has been abused or is at risk of abuse; or

(b)a disclosure by a child who has not attained the age of 18 years that indicates that the child has been abused or is at risk of abuse,

unless, in the opinion of the court or board, tribunal or person authorised to hear evidence referred to in subsection (1), there is sufficient evidence of the admission or disclosure available to the court from other sources.

(3)A family counsellor who refers a person to a professional (within the meaning of subsection (1)(b)) must inform the professional of the effect of this section.

54The operation of the equivalent provisions of the Family Law Act 1975 (Cth),[30] were considered in detail by Coleman J, exercising jurisdiction of the Full Court as a single judge in Unitingcare - Unifam Counselling & Mediation & Harkiss and Anor.[31]

[30] Being the Family Law Act 1975 (Cth) ss 10B–10E.

[31] Unitingcare - Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476.

55His Honour observed s 10D(3)–(5) of the Family Law Act 1975 (Cth) provided for discretionary disclosure by a family counsellor if the identified criteria for disclosure was met. The subsections do not provide the Court with the same discretion, or any power, to order disclosure.

56Justice Coleman stated:

39.In the Court’s view, s 10D(3) provides for disclosures which are “authorised” rather than “required”. Interpreting the section in the way urged by Counsel for the ICL would endow “may” with a meaning quite different from, and inconsistent with its normal meaning, contrary to the provisions of s 33 of the Acts Interpretation Act. If the legislative intention had been to require disclosure in the circumstances described in s 10D(3), “must” would have appeared instead of “may”.

40.In the circumstances of this case, s 10D(3)(a) was potentially enlivened, both persons who made the relevant communications being over eighteen and having consented to the counsellor disclosing communications made by them to him or her in the course of family counselling. In those circumstances, the family counsellor “may” have disclosed the communications. He or she was not thereby obliged to do so. Nothing in s 10D(3), or elsewhere in s 10D, empowered the learned Federal Magistrate to require the family counsellor to disclose the communications made to him or her.

41.Section 10D of the Act creates and defines the privilege attaching to communications made to a family counsellor in the conduct of family counselling, and articulates the circumstances in which that privilege may, or must be waived. Given the absence of legislative constraint upon the persons or entities to whom, or to which disclosed communications may be published, failure to observe the legislative imperatives of s 10D could have quite unintended consequences, and potentially adverse implications for the welfare of children referred to in, or connected with such communications. The Court’s construction of s 10D gains additional support from s 15AA of the Acts Interpretation Act.

57His Honour rejected an argument to the effect that s 69ZX of the Family Law Act 1975 (Cth) (which provides for the Court’s general duties and powers relating to evidence)[32] could be relied upon to order disclosure, contrary to the terms of s 10D.

[32] The equivalent provision being s 202L of the Family Court Act 1997 (WA).

58Following a discussion with respect to the law in relation to the use of subpoena as a means to obtain disclosure, Coleman J concluded:

72.To the extent that the documents which Unifam may have produced could have come within the terms of s 10E(2), the subpoena does not adequately identify them. It readily could have. There is a material distinction between seeking production of documents which, if they exist, can be readily identified and produced in circumstances where such documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible according to general law, and s 10E of the Act. The latter offends both. Given the terms of s 10E, the subpoena to Unifam, drawn in the terms in which it was, can be seen as oppressive.

73.As noted at the outset of these Reasons, it was squarely and properly conceded by Senior Counsel for Unifam that, had the subpoena been expressed in the terms of s 10E(2)(a) and (b), and Unifam held any documents falling within those provisions, they would have been produced. Having regard to the terms of s 10D(2), the scope for gaining disclosure of “communications” made to a family counsellor during the conduct of family counselling in reliance upon s 10E(2) would appear to be limited.

74.Although they would not necessarily have thereby been admissible, the exception created by s 10E(2) of the Act may have empowered the learned Federal Magistrate to make the order he did on 26 May 2011. The failure of the subpoena to seek production of documents falling within those provisions deprived the learned Federal Magistrate of that source of power.

EVIDENCE ACT 1906 (WA)

59Counsel for Organisation A submitted the objection with respect to maintaining therapeutic confidences, required consideration of both common law principles, together with the provisions of ss 20A to 20M of the Evidence Act, regarding the protection of confidential communications given in professional confidential relationships (known as the “Shield Laws”).

60Section 20A of the Evidence Act defines relevant terms as follows:

harm includes actual physical bodily harm, financial loss, stress or shock, damage to reputation or emotional or psychological harm, such as shame, humiliation and fear;

protected confidence means a communication made by a person in confidence to another person (the confidant) ––

(a)in the course of a relationship in which the confidant was acting in a professional capacity; and

(b)when the confident was under an express or implied obligation not to disclose its contents, whether or not the obligation arises under law or can be inferred from the nature of the relationship between the person and the confidant.

61Section 20C(1) of the Evidence Act provides that:

A court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose ––

(a)a protected confidence; or

(b)the contents of a document recording a protected confidence;

…

62The Court may give such a direction on its own initiative, or on the application of the protected confider or confidant.[33]

[33] Evidence Act 1906 (WA) s 20C(2).

63Section 20C(3) of the Evidence Act provides that:

A court must give such a direction if satisfied that ––

(a)it is likely that harm would or might be caused, whether directly or indirectly, to the protected confider if the evidence is adduced; and

(b)the nature, extent and likelihood of the harm outweigh the desirability of the evidence being given.

64Section 20C(4) of the Evidence Act sets out a non-exclusive list of matters which the court must have regard for that purpose.

65Organisation A’s counsel conceded there is no provision in s 20C which states it is to be applied directly with respect of an objection to the production of documents pursuant to a subpoena.

66The Court was directed to the decision of Pritchard J (as Her Honour then was) in Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290, in which Her Honour did not consider it necessary to decide the point, but observed that “if the Shield Laws do not apply in respect of the production of documents under a subpoena, the very protections [they] are designed to provide could be significantly undermined, if not rendered nugatory”.[34]

[34] Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 at [104].

67Her Honour considered in the context of a subpoena to produce documents, an alternate approach to s 20C, was to consider whether it would be oppressive or an abuse of process to produce a document on subpoena, which in all likelihood, would not be admitted into evidence at trial.[35]

[35] Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 at [124], [126], [174]–[175].

68Organisation A submits subject to s 20F, which permits the Court to make such orders as it considers appropriate to limit the possible harm, or extent of the harm likely to be caused by the disclosure of evidence of a protected confidence, the documents sought pursuant to the subpoena are likely to attract an order under s 20C of the Evidence Act.

69Recently, O’Brien J in Fletcher and Fletcher [2022] FCWA 149 considered s 20C of the Evidence Act. His Honour found it was not necessary to make a determination, while expressing the preliminary view, that the provisions applied equally to the production of documents under subpoena for the reasons noted by Pritchard J. His Honour stated, at [31] that “a construction which promotes the purpose or object underlying the relevant law is to be preferred to a construction which would not”.[36]

[36] Interpretation Act 1984 (WA) ss 18–19 and the second reading speech of the Hon Attorney General, Western Australia, Parliamentary Debates, Legislative Assembly, 20 October 2011.

70These provisions were not the subject of any detailed submissions, and for the reasons which follow, I do not consider it necessary to make a determination. However, I respectfully agree with the preliminary views expressed by His Honour.

DISCUSSION AND CONCLUSIONS

71I consider it appropriate to determine the objection to subpoena now. Such an outcome is consistent with the position urged by each of the parties, and the obligations imposed on the Court, in terms of the conduct of child‑related proceedings.[37]

[37] Family Court Act 1997 (WA) Pt 5 Div 11A.

72I am not persuaded by the mother’s submission that the Court should disallow the objection, on the basis of Ms A’s consent to the proposed order [in] May 2022 for leave to the ICL and Single Expert Witness only, to inspect the subpoenaed documents. I was not prepared to make the order as sought, for the reasons reflected in the transcript of the hearing.

73Having carefully considered the circumstances, I am satisfied and intend to exercise my discretion, to set aside the subpoena, for the following reasons.

74The concerns relating to family violence with respect to the family are squarely in issue in the proceedings. The documents sought pursuant to the subpoena relate to Child A’s confidential counselling, arising out of allegations she has been exposed to family violence.

75When arrangements were made for Child A to attend counselling, Child A and the parents understood, and accepted, it would be conducted in confidence, and not be disclosed. There is no evidence, or submission by either parent, to suggest they were involved in Child A’s counselling, or have any knowledge of what has been discussed in the sessions.

76The legislative provisions reflect the philosophy that confidential communications should be protected, noting the discretion exists to release documents, if proper to do so.

77The subpoena requires the production of confidential communications pursuant to the provisions of the Act, as defined. In my mind, there are significant doubts as to the admissibility of the documents at trial, as a result of s 50 of the Act, and s 20C of the Evidence Act. To permit the subpoena, to produce documents which may be inadmissible at trial, may amount to an abuse of process. I acknowledge the test for relevance is wider than the question as to admissibility.

78The purpose of the counselling was to assist Child A. The purpose was not to enquire into Child A’s relationship with either parent, or indeed any of the other terms of reference, which form part of the role and obligation of the Single Expert Witness.

79The fact the Single Expert Witness has liberty to speak with such other persons as she considers appropriate, with respect to the children’s welfare, does not advance the case, nor does the fact that other entities or service providers have provided information to the Single Expert Witness without objection.

80In conducting child-related proceedings, the Court is mandated to consider the needs of the children concerned, and the impact the conduct of the proceedings may have on the children, in determining the conduct of the proceedings. I cannot be satisfied as to the impact of the contents of the counselling being made available to Child A’s parents, the ICL, and the Single Expert Witness.

81It is unknown whether Child A is continuing to engage in any such counselling, and if so, what impact the production of the subpoenaed documents may have upon that therapeutic relationship. Even if Child A is not currently engaged in counselling, there are questions as to whether Child A can form an effective therapeutic relationship in the future, absent any confidence as to the confidentiality of such counselling.

82Accepting that Child A is six years old, it is clear she was informed the counselling was not reportable. The counselling was designed to deal with highly personal, sensitive issues for Child A, in a therapeutic context. In my view, the Court should not lightly jeopardise such an arrangement, in circumstances where the service provider objects, given the terms and conditions upon which they agreed to provide counselling.

83Finally, I consider Organisation A’s submissions with respect to their reputation in terms of providing confidential counselling services to vulnerable individuals, including children, is a relevant factor. It is not a determinative factor in this case, but it forms part of the overall circumstances which supports the setting aside of the subpoena.

84As a result of my conclusions, it is unnecessary to consider whether the documents are subject to public interest privilege, or to otherwise address the balance of submissions, save for the following points.

85With respect to the proposals the Single Expert Witness be permitted to speak with the relevant counsellor at Organisation A, there is no such application was before the Court. The discrete issue is the objection to subpoena, which has been dealt with.

86Organisation A sought an order for costs. Subject to hearing from the parties, I propose to make directions with respect to the determination of any application for costs, in the absence of any agreement.

ORDERS

87Subject to hearing from the parties as to form only, I propose to pronounce orders as follows:

1.The subpoena issued to [Counselling Service A] ([Organisation A]) at the request of the Applicant, MS KENLEY MAIR, [in] February 2022, be and is hereby set aside.

2.In the event [Organisation A], or any party, wishes to make an application as to costs, then within 28 days they are to file and serve a Minute of Orders Sought (in relation to the issue of costs), and written submissions in support of their application for costs, limited to 15 pages and no more than 5 annexures.

3.Within 28 days of receipt of an application as to costs as referred to above, the other party file and serve a Minute of Orders Sought (in relation to the issue of costs) and written submissions in support limited to 15 pages and no more than 5 annexures.

4.The other party have leave to file a brief response to the other party’s submissions (limited to a maximum of 5 pages) within 14 days of receiving the documents referred to in the preceding order.

5.The issue of costs otherwise be determined in chambers, in the absence of any written request by the parties, to be made within 3 calendar months of the date of these orders.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

CD

Secretary

4 AUGUST 2022