KNAUS and KNAUS
[2010] FMCAfam 1370
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| KNAUS & KNAUS | [2010] FMCAfam 1370 |
| FAMILY LAW – Family law and child welfare – the Family Law Act 1975 (Cth) and related legislation – confidentiality of subpoenaed material from therapeutic counsellor. |
| Family Law Act 1975, ss.10C, 10D, 10E, 10F, 10G, 10J, 69ZT(1) Evidence Act 1995, s.131 |
| EI Dupont de Nemours & Co v Imperial Chemical Industries PLC (2002) FCA 230 Field & Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285; 32 ALJR 110 In the Marriage of Lace (1981) 7 Fam LR 631 Rogers & Rogers (1964) 114 CLR 608 Telstra Corporation Limited v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 Wilson & Roberts (No.2) [2010] FamCA 734 |
| Batterby, “Confidentiality and admissibility of documents or facts disclosed during a negotiation or other ADR process” (1992) 26 Australian Construction Law Newsletter 27 McNicol, Law of Privilege, 1992 Rogers & Rogers (1964) 114 CLR 608 Smark, “Privilege under the Evidence Acts” (1995) 18 University of New South Wales Law Journal 95 |
| Applicant: | MS KNAUS |
| Respondent: | MR KNAUS |
| File Number: | MLC 7826 of 2010 |
| Judgment of: | Riethmuller FM |
| Hearing date: | 25 October 2010 |
| Date of Last Submission: | 1 November 2010 |
| Delivered at: | Melbourne |
| Delivered on: | 11 November 2010 |
REPRESENTATION
| Counsel for the Applicant: | Ms Swart of Counsel |
| Solicitors for the Applicant: | Rudstein Kron Lawyers |
| Counsel for the Respondent: | Mr C. Nehmy |
| Solicitors for the Respondent: | Barbayannis Lawyers |
ORDERS
Leave be granted for the solicitors to photocopy Mr M’s notes.
IT IS NOTED that publication of this judgment under the pseudonym Knaus & Knaus is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 7826 of 2010
| MS KNAUS |
Applicant
And
| MR KNAUS |
Respondent
REASONS FOR JUDGMENT
In this case, a subpoena was issued to a psychologist, Mr M, seeking copies of notes and records with respect to his dealings with the parties. In response, Mr M objected to the production of his notes.
In the subpoenaed records of Dr K, the wife’s general practitioner, there is a letter from Mr M which the husband argues should also be the subject of privilege.
Background
The parties in these proceedings commenced a relationship in 2002, marrying in 2005 and separating in 2010. They have two daughters, aged four and two respectively. The wife seeks orders with respect to financial matters, spousal maintenance, and children’s issues. The husband also seeks orders with respect to children’s issues and the dismissal of the wife’s application with respect to financial matters and spousal maintenance.
The material filed by the parties raises serious issues with respect to their mental health, family violence, and behaviours that will be significant in assessing the appropriate care arrangements for the children. Procedural orders in the proceedings have already provided for psychiatric assessments of the parties, a family report, and the appointment of an Independent Children’s Lawyer. Legal Aid Victoria has declined to appoint an Independent Children’s Lawyer (although, it seems, without any assessment of the merits of this particular case, but by mechanical application of a weekly quota system).
The seriousness of the claims is apparent from the terms of the notice of risk of child abuse or family violence filed by the wife, wherein the following risks are alleged:
On 20 June 2010, [the child M’s] head was hit while she was being held by the husband during an argument between the husband and me because the husband was intent on making a misleading voice-recording of the argument in his mobile phone. The husband is preoccupied with his relationship with me, to the detriment of the children.
The husband has threatened self harm in the presence of the children, oblivious to the effect of same on the two girls.
The husband suffers from an undisclosed psychiatric condition and has been behaving irrationally, including suicidally, for many months.
The husband has been overbearing of the wife during the relationship, controlling financially and personally.
The husband continues to attempt any means to continue the relationship, and uses any opportunity to engage in conversation.
The husband has been verbally and physically abusive in the period prior to and after separation.
The husband is unstable. He will have been served with my Application supported by my affidavit, and I am concerned that he will become worse and harm the children in his need to control me.
A key feature of the allegations, relevant to the objection to the subpoenaed material, is whether or not the husband is now, or has been, suicidal. The wife alleges (at paragraph 23 of her affidavit) that, on 26 February 2010, the husband had allegedly sent the wife a text message in which he professed his love for her and said “Goodbye.” The wife also had contact from the husband’s sister, who was searching out the husband and unable to locate him on that day. The wife says that the husband’s sister told her that she had reported the husband missing to the police, and that he was eventually located on a beach near Melbourne. The wife makes allegations of another threat of suicide in March 2010.
The wife alleges that the husband was taking antidepressants and antipsychotic medications at around this time. The wife expresses her concern as to the alleged suicidal tendencies of the husband and her concern with respect to the children.
The husband squarely addresses these allegations, saying in this affidavit filed 18 October 2010:
[24.] I wish to state unequivocally that:
a. I did NOT make a suicide attempt at [beach omitted].
b. I was NOT found or spoken to by the police at [beach omitted].
c. I was NOT found with the means to end my life.
d. I have NEVER ever had any suicidal thoughts.
e. I was NOT found by my sister and brother in law at [beach omitted]. I contacted my friend Mr H to voluntarily advise him of my whereabouts, and he contacted my brother in law to advise same.
…
[37.] I wish to state unequivocally that:
a. I do NOT suffer from any psychiatric condition and have never done so.
b. I do NOT suffer from any mental illness and have never done so.
c. I do NOT suffer from clinical depression and have never done so.
d. I do NOT take any prescribed medication at present.
The husband admits that he took prescription medications as a result of stress and anxiety, which he alleges was caused by the wife’s threatening behaviour. He alleges that, on returning to work at the end of February/early March, he achieved a standard of excellence in his employment. The husband also alleges that he has a recording on his telephone of exchanges where the wife is allegedly swearing at the children; that she has physically assaulted him in front of the children, with one of the children exclaiming, “Stop punching Daddy”; and she has attempted to provoke him into striking her, saying things such as, “Come on, fucking go and hit me,” and “Fucking hit me, prick.”
The objections to the production of the subpoenaed material
Mr M objects to the production of the subpoenaed material on the basis:
I submit the following statement in support of the attached Notice of Objection.
Any information about either of these persons was obtained as part of this couple’s contact with me to provide marriage counselling in an attempt to repair problems in their relationship.
The assumption amongst the three of us was that such discussions would be strictly confidential and information obtained would be solely for the purpose of marital counselling. This assumption of confidentiality mirrors the spirit of the provisions for non-reportable counselling under the Family Law Act where the confidentiality of the discussions is seen as central to protecting the therapeutic relationship between counsellor and the couple and contributing to effecting a positive outcome.
No information has been provided by the solicitors regarding the purposes of requesting this information. If the purpose of such a request is to consider using such information in a dispute between the parties, my objection is that such a purpose is in contradiction of the circumstances and understandings of where and when such information was obtained.
My objections to providing this information are best summarised as:
1. The material is not relevant to any matter other than helping the parties repair their marriage.
2. The use of the material in a Court setting is potentially harmful to the long term family relationships..in particular to the best interests of the children whose wellbeing is reliant on long term parental co-operation.
3. My arrangement with the parties remains..as in all cases..open ended and my therapeutic usefulness to this family will be damaged by being drawn into current disputes.
Despite the claims that the process undertaken by Mr M was marriage counselling, and confidential, he nonetheless reported to the wife’s doctor. In the letter contained within the doctor’s records, he said:
Dear [first name omitted],
Re [The Applicant]
Thank you for referring this lady for counselling under a Mental Health Care Plan on 10.2.10.
As you know she has been increasingly anxious and depressed about her unhappy marriage and in particular the silent war between her husband and herself since she told him her feelings about the marriage some three months ago.
I saw her with her husband [the respondent] on 24.2.10. In the session [the respondent] was vert emotionally labile..intermittently tearful, angry and somewhat histrionic in his pleas to his wife to forgive him and take him back. It was almost impossible to focus on any practical discussion of what might be done to improve things as he delivered long speeches about how much he loved her and how he would do anything to win her love back..Meanwhile his wife listed a long list of complaints about his treatment of her over the years..in particular his obsession with controlling most aspects of their lives including a total control of all money matters. I arranged to seem them again in a week’s time.
On 3.3.10…the day of our next appointment..I heard that [the respondent] had made a suicide attempt four days ago and had been found by the police in [beach omitted] with the means to end his life..Believing that marital counselling may be contra.indicated under these circumstances (marital counselling can often stir up strong emotions) I telephoned [the respondent] and put my concerns to him. He denied any problems and urged me to keep the same appointment with him and his wife. I then telephone [the applicant] to express the same concern. She told me that life at home was becoming intolerable, that [the respondent] was in a bad way and that she had never seen him like this before. She wanted me to see them today because she feared his reaction if the appointment was cancelled. I agreed to keep the appointment.
In today’s session I questioned [the respondent] closely about his suicide attempt, about the existence of any current suicidal thoughts and what help he was getting for his current mental state. He was very reluctant to answer my questions other than to say he was “hanging on by a thread” and that “[the applicant] would be there for him if he had suicidal thoughts again”. [The applicant] immediately told me that she refused to be left responsible for his life or death. She told me that [the respondent’s] sister and brother in law who had tried to find him all day on Friday were told by police that they believed [the respondent] would have killed himself if they had not found him. When I asked why [the respondent] had been allowed to go home in that state he told me he had phoned his cousin [omitted] Psychologist who had spoken to the police on the phone and they let him go. When I ended the session after 90 minutes he stored out of the room because [the applicant] said she did not want to continue the discussion at home. I believe this man is a suicide risk and that he needs an urgent psychiatric assessment and perhaps hospitalisation until his severe depressive state can be brought under control.
I would like to discuss this situation with you asap.
Regards,
To the extent that the provision of services by Mr M were within the Medical Benefits Schedule provided by Medicare, it appears that they would have to have been a “professional attendance for the purpose of providing focused psychological strategies services for an assessed mental disorder”. The range of acceptable strategies is set out in the guidelines, but does not include relationship counselling or marriage counselling.
Whether Mr M provided both counselling under a mental health care plan as well as marriage counselling, or conducted all of the sessions as counselling under the mental health care plan, is not clear. What is apparent, however, is that at least part of the services provided by
Mr M were counselling under a mental health care plan. There appears to me to be no basis for the notes or information flowing from those services of the type referred to in the Medicare Medical Benefits Scheme to be considered to be confidential or privileged. Mr M has not provided any method whereby it is possible to distinguish between the counselling services provided in this regard and the claimed marriage counselling.
Despite this very real lack of clarity from the material, it appears to me that the content of the letter from Mr M, and the attendance of the husband, confirms that at least part of the process was in the nature of marriage counselling.
The relevant counselling occurred prior to separation on 15 April 2010, but clearly at a time after the parties were in dispute.
The husband objects to the release of the notes on a number of bases:
a)that the material is protected pursuant to section 131 of the Evidence Act 1995 (Cth); or
b)that the material ought to be excluded on the grounds of public policy;
c)that the material is protected by common law privilege;
d)that the probative value of the material is substantially outweighed by the danger that the evidence might be unfairly prejudicial to the husband, pursuant to section 135 of the Evidence Act.
Privilege provided by the Family Law Act
It is convenient to commence with a consideration of the specific provisions of the Family Law Act. Part II deals with non-court based family services. Division 1 provides for a number of accreditation rules which can be provided for in the regulations. The regulations do contain those rules in regulations 57 to 61. There is nothing before me, in this case, to show that Mr M is registered, and neither party alleges that Mr M was so registered.
The confidentiality provisions contained within ss.10D and 10E, 10F or 10J do not appear to apply unless Mr M were a family counsellor or family dispute resolution practitioner, as defined in ss.10C or 10G of the Act. In the circumstances, I am not persuaded that the provisions of the Act provide any basis to oppose the production of the material subpoenaed.
I accept the submission from counsel for the wife that, even if the provisions of the Act did apply, s.10D provides the basis for Mr M to make a disclosure for the purposes of protecting a child from the risk of harm, or preventing or lessening a serious and imminent threat to the life of health of a person (there being an identical provision in section 10H with respect to family dispute resolution) which would found the disclosure to the doctor.
Whether this would ultimately provide part of a foundation for the inadmissibility of the evidence of Mr M under Part II of the Family Law Act (in light of ss.10E and 10J respectively), it is not a matter that I would need to determine at this point. As a result of Mr M not being a counsellor covered by Part II, I conclude that the Family Law Act provisions in Part II do not provide a basis for upholding the objections to the subpoena.
Section 131 of the Evidence Act
Section 131 of the Evidence Act excludes evidence of settlement negotiations save in specified circumstances set out in s.131(2). Section 131(1) provides:
Evidence is not to be adduced of:
(a)a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or
(b)a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
Crucial to this case is the question of whether or not the parties were “persons in dispute” within the meaning of s.131(1). A definition is provided in section 131(5), which relevantly provides:
In this section:
(a)a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding ...
It is well accepted that there does not need to be proceedings pending before the privilege provided for in s.131 is available.
Section 114(1)(d) of the Family Law Act provides for the Court to make injunctions for the protection of the matrimonial relationship, along with a broad range of other injunctive powers that are more commonly used. Orders can be sought under the Act with respect to the property of the parties or the care of the children. In these circumstances, it appears that, while separation of the parties is a necessary element for an application for a divorce, it is not a necessary element for parenting orders or financial orders. In the circumstances, it appears that the matrimonial dispute, even prior to separation, is “a dispute” within s.131 on the basis that proceedings could be brought under the Family Law Act, at the very least, for injunctive relief.
This reasoning is consistent with the development of the common law without-prejudice privilege with respect to matrimonial matters. In Law of Privilege, 1992, at 455 to 459, McNicol identified that, on earlier English authorities, there appeared to be two separate common law privileges, one in the traditional without-prejudice format and the other with respect to marital reconciliations, which appeared to have merged by the time of the decision in Rogers & Rogers (1964) 114 CLR 608. The author says:
It appears from this decision that without-prejudice privilege was relied on as the raison d’être for the decision that, whilst the family law cases were approvingly referred to as “not open to question”, they were also cited as recent examples of the “purpose and application of the rule in the matrimonial causes jurisdiction”. It is submitted, therefore, that the case of Rogers & Rogers goes a long way towards amalgamating the two privileges.
In the circumstances, s.131 of the Commonwealth Evidence Act appears to cover the field with respect to without-prejudice privilege and marriage counselling, replacing the common law privileges. For this reason, the arguments based upon the common law privilege are not available and the circumstances must be considered within the ambit of s.131.
I note that dealing with such an application entirely within the ambit of s.131 is consistent with the reasoning adopted by Dessau J in Wilson & Roberts (No.2) [2010] FamCA 734, [23–37]. I also note that the decision approves the proposition that s.69ZT(1) of the Family Law Act does not oust the operation of s.131 of the Evidence Act, as s.131 does not fall within the various parts of the Evidence Act dealt with by s.69ZT.
As a result, I find that s.131(1) appears to apply to prohibit the adducing of this evidence, unless it falls within an exception in s.131(2).
The relevant exceptions, for the purpose of this case, are ss.131(2)(c) and (g), which provide as follows:
(2)Subsection (1) does not apply if ...
(c) the substance of the evidence has been partly disclosed with the express or implied consent of the persons in dispute, and full disclosure of the evidence is reasonably necessary to enable a proper understanding of the other evidence that has already been adduced, or ...
(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence[.]
The only discussion by the husband of the counselling sessions appears at paragraph 15 of his affidavit filed 18 October 2010, where he states:
[15.] Living under these conditions, it came as a shock to me when [the applicant] suggested we do couples therapy (to strictly assist us with our relationship only) with a counsellor (Mr M) who was situated in the same building upstairs as her Dr K. The suggestion alone was a shock but when [the applicant] said that she didn’t think seeing a counsellor would help us in any way, and would probably be a waste of time, this was a contradiction in terms. Surely someone suggesting counselling should be hopeful merely by the opportunity it presented. It’s obvious to me now that she had ulterior motives and that she was not genuine in any way. We commenced with Mr M (Counsellor), I believe around the 24th February 2010 and had about 4 separate hourly sessions. [The applicant] was most belligerent and vernally abusive to me in the car when we left to go home after our first appointment. She believed that I was bringing up too many things that I was bringing up too many things that embarrassed her and made her appear materialistic, money hungry, unemotional and selfish. At the same time I told her that I would do anything to keep our family together, materialistic or otherwise, and most importantly I loved her unconditionally. This comment incensed her further as she had always hated it when I implied she was materialistic. She then threatened me that I would pay for that.
Importantly, he goes no further than setting out the dates of attendance, and discussions that happened between the parties outside of the sessions. It does not appear to me that this is sufficient disclosure of the discussions during the sessions to satisfy s.131(2)(b) or (c), as it does not disclose the substance of the evidence of the events involving Mr M partly or wholly, with respect to the negotiations or counselling sessions themselves. In the circumstances, I am not persuaded that this exception has been established.
With respect to the second exception, I must consider what evidence has been adduced and whether it is likely to mislead the Court, unless the evidence of the communications and the counselling sessions are able to be adduced to contradict or qualify the evidence. In this respect, I note that the evidence of the husband as to his mental health is provided in more detail in his first affidavit of 8 September 2010, where he says:
[29.] That as to paragraph 23 of the affidavit, I deny that there is any reason why [the applicant] would be about my mental health. On the 26th February 2010, [the applicant] and I were having a serious discussion at work about our marriage and family. It is accurate to say that I was pleading for her not to break up our family. The discussions culminated in [the applicant] threatening me that she would fabricate stories that I abused her. She said to me that the police would never believe me and that they would take her word over mine. She said that she would “make sure of it.” It was during this conversation that [the applicant], for the first time, threatened that she would falsely report me for physical abuse against our beautiful girls even worse to the police and to the Department of Human Services. She told me that whatever she had to do she would do in order that I would never see the girls again. She threatened me that I “could do it the easy way and leave her and the children voluntarily” or she stated that she would destroy my character in the process and achieve the same result the hard way for me.
[30.] That I was very shocked with what [the applicant] said. I needed some time to think about what was said, particularly after the threats which the wife had made to me in respect to false allegations. I determined to go for a long drive in order to reflect on things. I went for a drive to [omitted] beach and had lunch there. I then went to [omitted] beach where I had some gelato. Thereafter I drive up to [omitted] where I stopped a few times along the way and finally settled for some serious thinking at [omitted] beach. I admit that I did not take any calls from either my family or my friends for some hours however, I did text my family later that evening to advise that I was fine. At approximately 8pm, I also contacted my friend Mr H and advised him that I was fine but very upset about [the applicant’s] offensive threats to me. I needed some time to think about what [the applicant] had said to me and to somehow convince her that she required help for her own depressive and psychiatric issues. When I spoke with Mr H, I asked him to call my sister and brother in law (Ms H and Mr J) to inform them that I was at [omitted] beach.
…
[35.] That as to paragraph 24 of the Affidavit, I state that I took the anti anxiety tablets Lexapro in the morning for a period of 3 weeks only during March and then ceased taking them save for one other evening when I had a very painful headache on April 15th. I never took the sample pack of Zyaprexa tablets at all. I was advised that they could assist me to sleep better however as I had never taken any sleeping tablets on either script in the past I did not intend to commence the same.
[36.] That I never left the tablets lying around the house ever and for [the applicant] to suggest that I did so is offensive to me. I am also extremely offended at [the applicant’s] suggestion that I would self medicate. The only reason that I took Lexapro for a short period of time was to assist me with the anxiety caused by [the applicant’s] threatening and abusive (both verbal and physical) behaviour to me frequently and in the presence of the children.
[37.] That the tablets which I have taken, for that short period of time have a number of uses and I have also sought advices about the uses of that medication since I received the wife’s Affidavit and I have been advised that Lexapro may be used to treat patients who have anxiety and worry.
[38.] That as to paragraph 25 of the Affidavit, I state that I do not have prescribed medication and otherwise deny the allegation. It is in fact the wife who has had difficulties with anxiety and depression over a significant number of years.
The letter from the counsellor sets out four matters that need to be considered:
a)the presentation of the husband on 24 February 2010;
b)interactions with respect to the follow-on appointment;
c)the husband’s presentation in the session on 3 March 2010; and
d)the overall presentation of the husband leading Mr M to state that he believes the husband is a suicide risk and in need of urgent psychiatric assessment and perhaps hospitalisation.
In Field & Commissioner for Railways (NSW) [1957] HCA 92; (1957) 99 CLR 285; 32 ALJR 110, the High Court identified the purpose of the privilege was to enable litigants to engage with one another freely and without the embarrassment which the liability of the communications being put in evidence might impose upon them. The litigants are relieved of this embarrassment so that their negotiations to avoid litigation or to settle may go unhampered (at page 291). Importantly, the court went on to state:
This form of privilege, however, is directed against the admission in evidence of express or implied admissions. It covers admissions by words or conduct. For example, neither party can use the readiness of the other to negotiate as an implied admission. It is not concerned with objective facts which may be ascertained during the course of negotiations. These may be proved by direct evidence. But it is concerned with the use of the negotiations, or what is said in the course of them, as evidence by way of admission.
In Field’s case, the plaintiff, as part of ongoing without-prejudice negotiations, attended upon an orthopaedic surgeon engaged by the defendant for assessment. During the course of the assessment, the plaintiff made a number of admissions with respect to the cause of his injury. The High Court noted that the extent of the privilege “does not depend altogether upon the expectations of the parties. It depends upon what formed part of the negotiations for the settlement of the action and what was reasonably incidental thereto”. The High Court was of the view that the opinion of the orthopaedic surgeon, as a result of examining the plaintiff, were clearly admissible, and that admissions made by the plaintiff to the orthopaedic surgeon during the course of his point were not fairly incidental to the purpose of the without-prejudice negotiation and therefore also admissible. Difficulty in applying the provisions was highlighted by Batterby in “Confidentiality and admissibility of documents or facts disclosed during a negotiation or other ADR process” (1992) 26 Australian Construction Law Newsletter 27, where decisions of two judges of the Supreme Court of New South Wales who came to differing views with respect to the disclosure of documents during the course of negotiations are dismissed.
Smark, in “Privilege under the Evidence Acts” (1995) 18 University of New South Wales Law Journal 95, notes that the statements made by the plaintiff in Field’s case would no longer be admissible under s.131 of the Evidence Act, as they would amount to a “communication”. However, the observations of the doctor would remain admissible.
It is difficult to see how the first section of the letter covers material beyond what would be expected from time to time in mediations or counselling of this type. In isolation, I am not persuaded that this amounts to an observation that on its own would be relevant.
The events of 3 March 2010 were in a different category. On this occasion, the conduct and observations were not during the course of counselling itself, but information concerning the parties’ conduct outside of counselling. Whether the events as described on 3 March 2010 can be the subject of evidence from Mr M, in an admissible form, is unclear from the contents of the letter. If his basis for the belief that the husband had made a suicide attempt is hearsay, it is difficult to see why it would be admissible (otherwise than as a result of s.69ZT(1) of the Family Law Act, but even then it would carry no weight). However, if the basis for that information were an admission from the husband outside of the counselling session, it appears that it would be admissible. Similarly, if it were an admission by the husband, it is contrary to the case that he has put before the Court in his affidavits.
The discussion with respect to the events at the session, as set out in the letter appears, again, to be largely a recounting of allegations of the wife, save for the statements that the wife “would be there for him if he had suicide thoughts again”. This appears to be a clear statement that the husband had suicidal thoughts, at least at some time in the past, and directly contrary to paragraph 24(d) of his affidavit, wherein he states:
I wish to state unequivocally that: ...
(d)I have NEVER ever had any suicidal thoughts.
In the circumstances, it appears that the evidence of the counsellor, at least with respect to the admission of suicidal thoughts, would not be excluded as a result of s.131.
The final matter is the overall assessment of the husband as a suicide risk as a result of his presentation and behaviour at the various counselling sessions. If he had presented with a physical ailment or impairment, for example a rash, cut or bruise, this would not have been a communication protected by s.131. The difficulty in this case is that the presentation of the husband as a person in urgent need of psychiatric assessment and perhaps hospitalisation is observed through his conduct during the course of his interactions with Mr M, is reliant largely upon the husband’s means of communication.
It appears to me that s.131 does not prevent evidence being adduced of the nature of the presentation of a person to the effect that the presentation was such as to show symptoms or behaviours indicative of a mental illness, at least within the definitions set out in DSM-IV. On this basis, the overall assessment by Mr M and the basis for that assessment do not appear to be precluded from being adduced in evidence under s.131.
Public Interest Privilege
The father also argued that there was a public interest privilege that should attach to marriage counselling or relationship counselling so as to prevent the admissibility of this material. The existence of a separate public interest privilege, as distinct from a without-prejudice privilege, was not explored by the High Court in Rogers & Rogers [1964] HCA 25. Whilst the court concluded that it was beyond question that the parties should be able to negotiate with a view to reconciliation without fear that, failing agreement, what was said or done by them may later be used in evidence. However, that decision was in the context of a husband and wife who were parties to a subsisting cause in the matrimonial causes jurisdiction (before the introduction of the Family Law Act). In the circumstances, it was not necessary for the High Court to determine whether there was a public interest in privilege, as the negotiation privilege applied in any event.
Whilst the Family Law Act provides specific provisions for privilege with respect to evidence of family counsellors, this does not repeal the relevant rules of the common law, nor take away privileges provided for under the Evidence Act (Cth): see generally In the Marriage of Lace (1981) 7 Fam LR 631 per Frederico J.
The Family Law Act provides a specific regime for the accreditation of family counsellors and family dispute resolution practitioners in order to ensure that those engaged in such processes are appropriately trained and exhibit the appropriate personal qualities to enable them to properly carry out what is often very difficult work. The Family Law Act also provides a range of specific immunities that are appropriate, in the view of government, for the carrying out of this task.
Having regard to the extent to which government has legislated in this area, it does not appear to me that there is a role for a public-interest privilege or immunity in this regard. In the circumstances, I therefore find that there is no public interest immunity applicable in this case. To do otherwise would be to extend protections comparable to those provided for in Part II and III of the Family Law Act to anyone who engages in family counselling or family dispute resolution without extending the protection to litigants of the accreditation rules provided for in the Act. This would undermine the clear policy of the provisions to provide for immunity and privilege in specific circumstances with respect to accredited practitioners.
I note here that the fact that a practitioner is not “accredited” under the regulations does not necessarily mean that they do not have the appropriate skills and qualities to carry out this type of work. The accreditation system, however, ensures that persons who are unable to demonstrate those skills and qualities are not able to carry out family mediations and family counselling or dispute resolution with the same protections that are provided for the accredited practitioners under the legislative scheme.
Common Law Privilege
The common law rules of evidence have not been entirely replaced by the Evidence Act, as it is not a Code. However, much of the common law on the issues of evidence has been superseded by the Act. Significantly, s.56(1) provides:
56. Relevant evidence to be admissible
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding.
This section is pivotal as it overrides the common law exclusion rules: see Telstra Corporation Limited v Australis Media Holdings (No 2) (1997) 41 NSWLR 346 at 349 per McLelland CJ and EI Dupont de Nemours & Co v Imperial Chemical Industries PLC (2002) FCA 230 at [46]. As a result, the common law rules on this issue no longer apply.
Conclusion
In the circumstances, I will grant the parties leave to inspect the file of Mr M. At this stage I do not propose to allow the parties to provide that material to family report writers or other experts giving evidence in the case without further orders so as to ensure that the limited evidence of Mr M that may be able to be adduced in accordance with s.131 of the Evidence Act is the only material passed on to other experts.
I certify that the preceding fifty (50) paragraphs are a true copy of the reasons for judgment of Riethmuller FM
Date: 8 December 2010
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