Kidd and London
[2011] FMCAfam 1084
•12 September 2011
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KIDD & LONDON | [2011] FMCAfam 1084 |
| FAMILY LAW – Objection to subpoena – meaning of family counselling. |
| Applicant: | MR KIDD |
| Respondent: | MS LONDON |
| File Number: | MLC 6130 of 2011 |
| Judgment of: | Hughes FM |
| Hearing date: | 12 September 2011 |
| Date of Last Submission: | 12 September 2011 |
| Delivered at: | Melbourne |
| Delivered on: | 12 September 2011 |
REPRESENTATION
| Counsel for the Applicant: | Ms Baczynski |
| Solicitors for the Applicant: | Roger O’Halloran & Co |
| Counsel for the Respondent: | Ms Conlan |
| Solicitors for the Respondent: | Cahill & Rowe Family Law |
ORDERS
Pursuant to Section 11F of the Family Law Act the parties attend reportable family dispute resolution with a family consultant nominated by the Children’s Dispute Services in the Melbourne Registry of the Federal Magistrates Court of Australia in relation to the children [X], born [in] 2003, and [Y], born [in] 2004. It is requested that an oral report be available at 2.15pm unless the family consultant assesses there is a benefit in the children being involved In the process, in which case the proceedings will be adjourned until later this week.
The material produced by [S] School is released to the parties for inspection if the documents already been received by the Registry.
A transcript of the reasons for decision regarding the release of subpoenaed material over objection be taken out and provided to the parties.
A transcript of the oral evidence of Ms E be taken out and provided to the parties.
That pursuant to Section 68L of the Family Law Act 1975 an Independent Children’s Lawyer be appointed for the children [X] born [in] 2003 and [Y] born [in] 2004 and Victoria Legal Aid is requested to facilitate such appointment as soon as possible.
That upon notification of the identity of the Independent Children’s Lawyer, each party shall forthwith provide to the Independent Children’s Lawyer a copy of all documents filed by them in the proceedings.
The proceedings are adjourned for interim hearing on 21 December 2011 at 10.00am.
That pursuant to Section 62G(2) of the Family Law Act 1975 the parties and the children [X] born [in] 2003 and [Y] born [in] 2004 attend upon a family consultant nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia on a date and at time/s to be advised for the purposes of the preparation of a Family Report to be made available to the Court and the parties, such report to be released by 30 November 2011. For the purpose of the preparation of the report the parties shall comply with all reasonable directions as to attendance upon the said family consultant as and when required by the family consultant.
Until further order, the children [X] born [in] 2003 and [Y] born [in] 2004 live with the mother.
Until further order the father spend time with the children as follows:
(a)Every second week from after school Thursday until the commencement of school the following Monday commencing 15 September 2011 (and in term 3 commencing the second week of term);
(b)From after school Thursday until the commencement of school on Friday in the alternate week;
(c)From 5.00pm 30 September 2011 until the commencement of school on 10 October 2011; and
(d)Such additional or alternative times as agreed.
Each parent may telephone the children on Wednesdays and Saturdays between 6.00pm and 7.00pm when the children are in the care of the other party and each shall facilitate any request by the children to telephone the other party at all reasonable times.
Each party shall keep the other party informed of their address and telephone number and advise of any changes to those details within 48 hours of such change.
Each party is restrained from attending at the premises of the other party without a specific invitation, other than the time the father will at his request collect the children from the mother’s home on 30 September 2011.
Each party is restrained from:
(a)Denigrating the other to or within the presence of the children or allowing anyone else to do so;
(b)Discussing these proceedings with or in the presence of the children except to simply answer any direction question of the children.
The time for compliance in the subpoenaed documents of [S] School is extended to 26 September 2011.
The mother shall institute a communication book to travel with the children between the homes of the parents and be used for information relating to the children only.
The parties shall forthwith take all reasonable steps to enrol in and commence:
(a)A post separation parenting course;
(b)Family dispute resolution at an organisation to be agreed between them.
The applicant father file and serve further material on which he seeks to rely by 7 December 2011.
The respondent mother file and serve further material on which it seeks to rely by 14 December 2011.
The mother shall within 7 days advise the father (through legal representatives) of the names and contact details of each of her treating medical practitioners or mental health practitioners and advise of any change to those details within 3 days of such change.
The Independent Children's Lawyer has liberty to relist in consultation with each other party.
AND THE COURT NOTES THAT:
A. The father’s current address is [address omitted].
B.Pursuant to section 65DA(2) and section 62B of the Family Law Act 1975, the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in Attachment A and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Kidd & London is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 6130 of 2011
| MR KIDD |
Applicant
And
| MS LONDON |
Respondent
REASONS FOR JUDGMENT
Ex tempore
In this matter there is an objection to the release of material sought to be produced under subpoena. The subpoena was issued to [S] School by solicitors for the father. That subpoena requests that the documents to be produced are as follows:
Notes and reports prepared by the school counsellor arising from counselling of the children [X], born [in] 2003 and [Y], [in] 2004.
The objection has been filed by Ms H, the Director of Counselling and Family Services at [C]. Ms H wrote to the Court on 24 August 2011 objecting to the release of the material. The body of her letter is as follows:
Family members received counselling at the school from a [C] practitioner (formerly [omitted] Melbourne). Our agency is gazetted under the Family Law Act, and the contents of counselling sessions and related discussions are inadmissible as evidence in court hearings (section 10E).
The matter comes before me today in relation to the care arrangements for the two children, [X] who is aged eight and [Y] aged six. The children live with their mother and spend time with their father. The father alleges the children are suffering neglect in the care of their mother which is evidenced by poor hygiene and late attendance at school or no attendance at all. He also alleges the mother has a cannabis abuse problem and depression, both of which the mother concedes to some extent.
It seems to be agreed by both parents that [Y] has been the subject of some bullying at school.
The father has never had counselling with [C] with the mother. The objection under section 10E of the Family Law Act is made on the basis that the family is involved in family counselling. Family counselling is defined under the Family Law Act 1975 as having the meaning given by section 10B. Section 10B defines family counselling as:
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 and interpersonal issues; and
(ii) issues relating to the care of the children.
That definition in section 10B seems fairly strongly directed at the marriage relationship or the interpersonal relationship of the parents, and the effects of the breakdown of the relationship. In this case the parties have been separated since 2006. The issues between them do not really have to do with the breakdown of the relationship; they have to do with the quality of care provided by the mother, according to the father, and, from the mother’s perspective, the quality of the care to be provided by him. I should say for completeness the mother alleges the father has been inconsistent in his spending time with the children, and have been exposed to violence between him and his current wife.
Section 10E provides that anything that is said in family counselling is not admissible, with two exceptions: where there has been an admission by an adult that there has been abuse of a child or risk of abuse of a child, or a disclosure by a child that the child has been abused or is at risk of abuse. Neither of those exceptions apply in this case, and in my view 10E does not apply in any event because the meetings between the children and the school counsellor do not come within the definition of family counselling for the purpose of the Family Law Act. Even if I am wrong about that, both parents are content for the material to be produced. As pointed out by the father’s counsel, section 10D(3) provides that:
A family counsellor may disclose a communication if consent to the disclosure is given by an adult or each person who has parental responsibility for a child if a disclosure is by the child.
Accordingly the objection to the production of the material is overruled and the material will be released to the parties.
I certify that the preceding eight (8) paragraphs are a true copy of the reasons for judgment of Hughes FM
Date: 11 October 2011
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