Malinowski & Gutermuth (No 2)
[2024] FedCFamC1F 655
•25 September 2024
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
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”).
The Court is assisted by the involvement of an Independent Children’s Lawyer (“ICL”).
The proceedings commenced by way of final hearing on 23 September 2024. The issues for determination focussed upon parental responsibility for the children and the extent to which, if at all, the children will spend with their father.
Prior to the final hearing, the mother’s counsel provided an Outline of Case document which indicated that over and above her evidence, she intended to rely upon the following witnesses:
(1)Ms E – CPS social worker who undertook a forensic interview of Y.
(2)Ms C – CPS social worker who engaged with Y in counselling.
(3)Ms F – CPS Social Worker who engaged with Y in counselling.
(4)Ms G – School teacher at Y’s school.
(5)Ms H – School teacher at Y’s school.
(6)Ms J – School counsellor at Y’s school.
(7)Mr K – School principal.
The attendances of all of the witnesses was secured by the issue of a subpoena. The subpoenas issued to the teachers and the school principal were summarily dismissed.
At the commencement of the first day of the final hearing, a solicitor appeared from the Crown Law Department SA on behalf of the Government of South Australia to raise formal objection to the subpoenas and therefore, the potential attendance of Ms E, Ms C and Ms F.
The basis of the objection was pursuant to Division 9 of the Evidence Act 1929 (SA) (“the Evidence Act”) namely, that the evidence likely to be adduced from the subpoenaed persons should be considered as “protected communications” and therefore excluded pursuant to ss 67E and 67F of the Evidence Act.
The mother opposed the objection, the ICL supported the objection and the father chose to remain silent.
After some initial discussion, the matter was stood down to instructions to be taken as to whether the objection taken would be maintained in respect of Ms E given that her involvement was not as a counsellor or therapist, and that her interaction with the child was not in therapeutic context but rather was for the purpose of conducting a forensic record of interview of Y.
Following instructions being received, the objection was withdrawn in relation to Ms E but maintained in relation to Ms C and Ms F.
It is conceded that Ms E referred Y to Ms C for therapeutic assistance and then when she was no longer available, Ms F continued with the provision of therapy.
Whilst not formally receiving the document into evidence, I was referred to a therapy progress report dated 4 October 2023 prepared by Ms C which sets out her therapeutic intervention which involved weekly therapy appointments at Child Protection Services (“CPS”) spanning approximately 18 sessions.
There is no corresponding document in relation to the therapeutic intervention of Ms F.
SUBPOENA PROCESS
The principles for issuing a subpoena to a non-party are:
(1)That the requesting party is only able to obtain a document or documents relevant to an issue in the proceedings;
(2)That the steps to be followed are conveniently set out in the often quoted remarks of President Moffit in National Employers’ Mutual General Association Ltd v Waind & Hill (1978) 1 NSWLR 372 at [381]:-
The first is obeying the subpoena, by the witness bringing the documents to the Court and handing them to the Judge. This step involves the determination of any objections of the witness to the subpoena or to the production of documents to the Court pursuant to the subpoena. The second step is the decision of the Judge concerning the preliminary use of the documents, which include whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the Court by cross examination or otherwise. It is the third step which alone provides material upon which ultimate decisions in the case rests. In these three steps the stranger and the parties have different rights, and the function of the Judge differs.
In Hatton v Attorney-General of the Commonwealth of Australia (2000) FLC 93-038 the Full Court set out a number of examples where a court may determine that it is proper to set aside a subpoena:-
·If the subpoena is for an improper purpose namely to obtain discovery against a third party
·Where it might be oppressive to comply with a subpoena
·Where a party embarks upon a “fishing expedition”
·Where it lacks relevance to the proceedings
The objection to the subpoena is not taken on the basis that it is inappropriate discovery, oppressive, a fishing exercise or that there is a lack of relevance. The objection arises out of the purported statement of confidentiality and therefore, the non-disclosure of the information.
The first step in the subpoena process is satisfied namely in that the documents have been brought to court. The objection comes within the second step namely, the preliminary use to which the documents should be put which would include the inability of the parties to inspect those documents.
It seems that the essence of the objection notwithstanding that it is founded upon the perception of confidentiality, is that as a matter of public interest immunity the documents and information should be prevented from disclosure and inspection to the parties.
STATUTES
Section 67D and 67E of the Evidence Act which, by virtue of the Judiciary Act 1903 (Cth), applies to this Court and provides for certain communications made in a therapeutic context to be protected by public interest immunity. These sections however, rely upon the communication being for the purpose of counselling or therapy for a victim, or alleged victim, of sexual abuse (see B & D [2003] FamCA 386). There is however, a general discretion to exclude evidence in s 135 and s 136 of the Evidence Act 1995 (Cth) but that relates to the third step namely, whether or not evidence should be admitted during the course of the trial proceedings. Accordingly, there are no statutory grounds upon which a subpoenaed party could object to the subpoena.
PUBLIC INTEREST IMMUNITY
In Cooper & Cooper [2012] 267 FLR 422 at [48], the Court held that whilst it would be ideal if all family counselling services could offer the same protection, there “…is no basis, founded upon legislative interpretation and absent a consideration of public policy considerations…, which would warrant such position being arrived at…”.
The Court has discretion to examine the documents and see whether they support a claim for public interest immunity (Zarrow v Australian Securities Commission (1992) 34 FCR 427 at [435].
Public interest immunity was also used to successfully uphold an objection to a subpoena in Goldy & Goldy(No 2) [2011] FamCA 418 in which a party sought to subpoena the “Kids Help Line”. Dawe J considered the Court should:
…be very wary about issuing subpoenas to an organisation which relies upon its confidentiality for its very existence. The benefit of the services provided by Kids Help Line to the children and young people who use that service is significant.
Dawe J upheld the objection on grounds of public interest immunity. The father in that case also sought to subpoena the child’s psychologist. Leave was granted for the subpoena but it was done solely for the purpose of establishing whether the counselling undertaken by the psychologist would fit within the exceptions found in the Evidence Act.
A narrower view of public interest immunity was adopted by R v Young (1999) 46 NSWLR 681 at [54] were Spigelman CJ held that public interest immunity “is concerned with, and the terminology should be confined to, the conduct of governmental functions”. His Honour went on to note that while the categories are not closed:-
93.the recognition of a new category of privilege requires the formulation of public policy by the Courts, within the confines of the proper role of Courts. It is only appropriate for the Courts to recognise a category of public policy which is capable of precise statement, and which reflects so widely held an opinion, that the Court’s reasoning can be described in terms of reasoning “recognition” rather than “creation”.
In Feinster & Feinster and Anor [2006] FamCA 232 Watts J considered at [49] that “public interest immunity differs from privilege as it operates for the benefit of the public interest in general and does not protect private relationships or interests”.
Counsel for the mother narrowed the scope of the evidence to be relied upon as confined to the following paragraphs:[1]
The [child] engaged well in:
Therapy sessions and assessment which aimed to identify which experience would be the focus for trauma processing, utilising the TF-CBT model. [The child] was able to grasp the concept of this model when explained to him utilising an analogy of climbing a mountain, such that the various stops along the journey to the top of the mountain, or “safety”, comprised the different components of TF-CBT. Some psycho education was undertaken with [the child] in relation to different types of trauma during which [the child] expressed that his understanding of sexual abuse involved unwanted touching of private parts by another person. Whilst the trauma sentence in relation to [the child] experience of sexual abuse was established, the detail of this experience and the component of which [the child] found the most distressing, remains unclear.
Throughout 1-1 and joint sessions, [the child] has reported fears about other people breaking into his bedroom, hearing things in his head at night, and frequent bad dreams which he often describes in detail. Additionally, [the child] has reported thoughts of wishing that he never had a father and that he had felt happy when [the father] had left the family home. He reported that [the father] would frequently swear at and act maliciously towards [Y], his brothers and [the mother], and has referred on multiple occasions to previous incidents involving [the father] pouring water on [Z’s] head, and having thrown [Y] in a pool, such that [Y] believed he had been drowning. This appears to be a recurring theme in [the child’s] narrative throughout therapy sessions, and further exploration is recommended regarding [the child]’s previous experience of care giving from [the father] and the impact this has had on his sense of safety and self‑concept.
[1] Report of Ms C dated 4 October 2023, page 3.
I am satisfied that Ms C was engaged with Y in a therapeutic context and that he is an alleged victim of a sexual offence and that at the time, may have been the subject of an ongoing police investigation but also, as the principal issue raised by the mother for determination which if found on the balance of probabilities would result in a finding that the father would present as a unacceptable risk to the children.
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.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 25 September 2024
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