Malinowski & Gutermuth (No 2)

Case [2024] FedCFamC1F 655

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA

(DIVISION 1)

Malinowski & Gutermuth (No 2) [2024] FedCFamC1F 655

File number(s): ADC 493 of 2023
Judgment of: BERMAN J
Date of judgment: 25 September 2024
Catchwords: FAMILY LAW – SUBPOENA – Objection – Where the child’s psychologist objects to giving evidence in a final hearing –Where the therapeutic context was provided to a child who is an alleged victim of a sexual offence – Consideration of public interest immunity – Objection upheld.
Legislation:

Evidence Act 1995 (Cth) ss 135, 136

Family Law Act 1975 (Cth) ss 60CA, 69ZN

Judiciary Act 1903 (Cth)

Evidence Act 1929 (SA) ss 67D, 67E, 67F

Cases cited:

B & D [2003] FamCA 386

Cooper & Cooper [2012] 267 FLR 422

Feinster & Feinster and Anor [2006] FamCA 232

Goldy & Goldy (No 2) [2011] FamCA 418

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

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

R v Young (1999) 46 NSWLR 681

Zarrow v Australian Securities Commission (1992) 34 FCR 427

Division: Division 1 First Instance
Number of paragraphs: 36
Date of hearing: 13 September 2024
Place: Adelaide
Counsel for the Applicant: Ms Betro
Solicitor for the Applicant: Shorter Legal Pty Ltd
Counsel for the Respondent: Mr Praolini
Solicitor for the Respondent: Pascale Legal Barristers & Solicitors
Counsel for the Independent Children's Lawyer: Mr Harley
Solicitor for the Independent Children's Lawyer: Harley & Co Lawyers

ORDERS

ADC 493 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN:

MR MALINOWSKI

Applicant
AND:

MS GUTERMUTH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1.The subpoenas issued to Ms C and Ms F both filed on 23 July 2024 are dismissed.

Note:   The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

REASONS FOR JUDGMENT

Berman J

INTRODUCTION

  1. Mr Malinowski (“the father”) and Ms Gutermuth (“the mother”) are unable to reach agreement with respect to the future parenting arrangements for Y born 2013 (“Y”) and Z born 2021 (“Z”) (collectively “the children”).

  2. The Court is assisted by the involvement of an Independent Children’s Lawyer (“ICL”).

  3. The proceedings commenced by way of final hearing…

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AGLC
Malinowski & Gutermuth (No 2) [2024] FedCFamC1F 655
Case
[2024] FedCFamC1F 655
Decision Date

CaseChat Overview and Summary

Malinowski & Gutermuth (No 2) involved a dispute between Mr Malinowski and Ms Gutermuth, with the Federal Circuit and Family Court of Australia addressing the admissibility of evidence from the child's psychologist in a final hearing. The case centred on whether the psychologists' evidence should be admitted, given that the child was an alleged victim of a sexual offence and had received therapeutic assistance. The court was required to consider the implications of Section 67F of the Evidence Act, which governs the admissibility of protected communications, and the principles outlined in Section 69ZN of the Family Law Act 1975 (Cth), which emphasise the need to consider the child's best interests and the potential impact of proceedings on the child.

The court addressed the objection to the psychologists' evidence by weighing the probative value of their testimony against the potential harm to the child. The court considered the public interest immunity and the importance of maintaining the therapeutic relationship with the child, ensuring that the child's confidence in the therapeutic process was not undermined by the potential use of their communications as evidence. The court concluded that the evidence of one psychologist, Ms E, who had conducted three interviews, was more relevant and should be considered alongside the mother's evidence to determine the veracity of the allegations. In contrast, Ms F's therapeutic role and lack of supporting documentation led the court to uphold the objection to her evidence, emphasising the importance of the therapeutic context.

Ultimately, the court decided to dismiss the subpoenas to both psychologists, Ms C and Ms F, due to the potential harm to the child and the therapeutic nature of their involvement. The court balanced the need for the parties to understand the child's situation with the necessity of protecting the child from further distress. The decision was grounded in the principles of child welfare and the preservation of the therapeutic relationship.

The court made orders discharging the subpoenas to both Ms C and Ms F, reflecting the decision to protect the child's interests and maintain the integrity of the therapeutic process. The orders were made on 25 September 2024, ensuring that the psychologists were not compelled to provide evidence in the proceedings.

Orders

Orders of the court

ADC 493 of 2023

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)

BETWEEN:

MR MALINOWSKI

Applicant

AND:

MS GUTERMUTH

Respondent

INDEPENDENT CHILDREN'S LAWYER

ORDER MADE BY:

BERMAN J

DATE OF ORDER:

25 SEPTEMBER 2024

THE COURT ORDERS THAT:

1. The subpoenas issued to Ms C and Ms F both filed on 23 July 2024 are dismissed.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Section 67F of the Evidence Act provides as follows:67F—Evidence of protected communications(1) Evidence of a protected communication—(a) is entirely inadmissible in committal proceedings; and(b) cannot be admitted in other legal proceedings unless—(i)the court gives permission to a party to the proceedings to adduce the evidence; and(ii)the admission of the evidence is consistent with any limitations or restrictions fixed by the court; and(c) is not liable to discovery or any other form of pre-trial disclosure.INTEREST OF THE CHILD The consideration of a subpoena is not to be determined by reference to s 60CA of the Family Law Act 1975 (Cth) (“the Act”) but that is not to suggest that the interest of the child play no part. Section 69ZN of the Act sets out the principles for conducting child related proceedings and it is clear from the first principle, as set out in s 69ZN(3), that the Court is to consider the needs of the child concerned and the impact of the conduct of the proceedings may have on the child in determining the conduct of the proceedings. It is a matter of balance therefore as to whether the probative value of the evidence outweighs the prejudice caused to the child, the admission of the evidence but also the broad consideration as to the need for the parties to be able to undertake a therapeutic process involving a child, without concern that the potential for information exchanged could be admitted into evidence. The possible loss of confidence not just by the child but also a child’s guardian as to the potential benefit of therapeutic intervention being outweighed by the process being used for evidence gathering. I have given careful consideration to the matters raised in Ms E’s report. If the focus is a matter of forensic importance then this would be a significant factor weighing against public interest immunity. In the current circumstances, the Court’s ability to determine the veracity of allegations made against the father is better able to be considered using the evidence of the mother but also that of Ms E’s who conducted three records of interview. There is a qualitative difference in the separate involvement of Ms E and Ms C. I consider that the objection to the introduction of evidence from Ms C should be upheld and the subpoena to her, dismissed. The situation involving Ms F is not dissimilar however, no assistance is provided in terms of any report, notes or other documents in order to assess the importance of her evidence. As such, given that I accept the continued therapeutic context of assistance provided by Ms F to Y, I also uphold the objection to her being compelled to attend court and give evidence.CONCLUSION I propose to make orders that discharge the subpoenas to both Ms C and Ms F. I make orders that appear at the conclusion of these reasons.

Decision

Reasons for decision

The situation involving Ms F is not dissimilar however, no assistance is provided in terms of any report, notes or other documents in order to assess the importance of her evidence. As such, given that I accept the continued therapeutic context of assistance provided by Ms F to Y, I also uphold the objection to her being compelled to attend court and give evidence.CONCLUSION I propose to make orders that discharge the subpoenas to both Ms C and Ms F. I make orders that appear at the conclusion of these reasons.

Ratio Decidendi

Legal Principle Established

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