MARSH & MARSH

FAMILY COURT OF AUSTRALIA

MARSH & MARSH

[2010] FamCA 780

FAMILY LAW – CHILDREN – With whom a child lives – Best Interests – International Travel

Family Law Act 1975 (Cth)
Evidence Act 1995 (Cth) s 135
Family Law Rules 2004

O’Sullivan v Medical Tribunal of NSW [2009] NSWCA 374
Killorgan Investments Pty Ltd v Baycorp Advantage Information Services Limited [2002] VSC 270
NSW Commissioner of Police v Tuxford [2002] NSWCA 139

APPLICANT:

Mr Marsh

RESPONDENT:

Ms Marsh

INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW

FILE NUMBER:

SYC

3464

2009

DATE DELIVERED:

8 September 2010

PLACE DELIVERED:

Melbourne

PLACE HEARD:

Sydney

JUDGMENT OF:

The Hon. Justice Ainslie-Wallace

HEARING DATE:

26-27 August 2010

REPRESENTATION

COUNSEL FOR THE APPLICANT:

Mr Ackman QC with Ms McMillan SC

SOLICITOR FOR THE APPLICANT:

Champion Legal

COUNSEL FOR THE RESPONDENT:

Mr Richardson SC

SOLICITOR FOR THE RESPONDENT:

Broun Abrahams Burreket

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms Shea, Legal Aid NSW

Orders

Pending further order:

The child L (born … October 1999) live with the mother
The mother be permitted to remove the child from Australia as follows:
(a)To New Zealand from 16 August 2010 until the beginning of school Term 4;
(b)To the USA from the end of school Term 4 until 15 April 2011
The mother will no later than 14 days before any departure, notify the father of the date of departure, provide him with an itinerary of travel which is to include arrival and departure dates to the various locations, details of the accommodation for the child and a contact number for the child.
The mother will no later than 28 days before departure provide the father with a proposed range of dates in which he may spend time with the child in accordance with order 8(a) and (b).
The father must no later than 7 days after receipt of that notice, inform the mother in writing as to whether he intends to spend the time with the child and on which dates.
The mother must use her best endeavours to ensure that the nominated dates do not fall within a period in which the child has a major competition or event.
It is a condition of the time spent pursuant to order 8(a) and (b) that the father ensure that the child is promptly delivered to all of his scheduled commitments for each day. The mother will provide the father with a comprehensive list outlining the scheduled commitments, the starting and finishing time and the necessary equipment for those commitments if it is anticipated that the father will take that equipment for the child to the scheduled commitments.
While the child is overseas the father spend time with him as follows:
(a)For a period of not less than three consecutive nights in each month that the child is away;
(b)For such other periods whether overnight or not as can be agreed between the parties and when the father is otherwise able to be present in that country.
While the child is present in Australia:
(a)Each alternate weekend from after school on Thursday until the beginning of school on Monday morning.
(b)In the other week from after school on Thursday until 8.00 pm that evening.
During the times that the child spends with his father in Australia, the father will ensure that the child attends all his scheduled sporting, training and other commitments. The mother is restrained from attending those scheduled events other than by invitation from the father.
Both parents are restrained from enrolling the child in new or different sporting, training or extra-curricular activities that would occur while the father is spending time with the child other than with the written consent of the other party.
The child while in Australia continue to attend C Primary School unless otherwise agreed between the parties.
That the orders of 26 February 2010 so far as they relate to the attendance on Ms B for Family therapy be discharged.

IT IS NOTED that publication of this judgment under the pseudonym Marsh & Marsh is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 3464 of 2009

MR MARSH

Applicant

And

MS MARSH

Respondent

REASONS FOR JUDGMENT

Background

This matter concerns a young boy, L (born in October 1999) (“the child”).
The parties were married in 1997 and separated in February 2009 but continued to live in the same house until they physically separated in June of that year.
In February 2008, the child started school at C Primary School in Sydney in Year 2.
It is undisputed that he is a talented sportsman. It is said that he is one of the top competitors of his age in Australia. He started his sport as a young child and was supported in the sport and associated coaching and training by both his parents. While the parties were living together they spent a great deal of the time with the child participating in his sprot either here or overseas and it is not disputed that in each of 2006, 2007 and 2008 the parties and the child spent between two to three months in the USA and in the years 2007 to 2009, a further three to four weeks of April and three to four weeks in September/ October were spent in that sport. To the extent that these periods covered school terms, the child did not attend school. The parties purchased a property in rural New South Wales and, during the sporting season, the child spent each second week on that property. The time spent included training, coaching and competing.
In addition to coaching and training on the sports grounds, the child receives additional coaching and training to enhance his abilities.
The mother proposes that the child should spend the majority of the year overseas pursuing his desire which is to become an elite sportsman, compete in international competitions and become a professional sportsman. The father opposes this course.
In preparation of the matter the Court ordered that an expert interview the parties and the child and report to the Court. Dr R was engaged and he prepared a report dated 23 October 2009. That report is the subject of contention. The mother seeks an order that it be rejected and another expert engaged to prepare a report.
In February 2010 the Court ordered that the parties and child attend Family Therapy with Ms B. An order was made preventing the request by subpoena of Ms B’s notes or of her to give evidence. The therapy sessions were not completed and there is controversy about the circumstances in which, so far as the mother is concerned, the therapeutic relationship was terminated. The father seeks an order that he be permitted to subpoena Ms B’s notes.
There has also been some contention about which school the child should attend. To a degree that issue is interlinked with the mother’s proposal

for overseas travel for the child and will at least in the interim follow the resolution of that issue.

Proposed Interim Orders

The father seeks orders that the child live with him and spend time with the mother each alternate weekend from Thursday after school until the commencement of school the following Monday and overnight on Thursday in the following week. He proposes that they share school holiday periods.
In the alternative, if the Court does not order that the child live with him, the father proposes that the child live with him week about with the mother.
Further and again in the alternative, the father proposes that the child live with the mother and spend time with the father from the end of school on Thursday until the commencement of school on Monday morning and in the following week Thursday overnight. In this event, the father proposes that the child will attend S School.
The mother proposes that the child live with her and she be permitted to remove him from Australia to travel to New Zealand from the end of school Term 2 to the beginning of Term 4 and to the USA from 10 December until 15 April the following year. She proposes that when the child is in Sydney, he spend each alternate weekend from 9am until 5pm Saturday and Sunday and in the other week from after school on Friday until 8pm with the father.

In the periods in which the child is not in Australia, the mother proposes that the father may spend time with him from 6.30 pm until 8.30 pm each evening unless the child has competed that day or is travelling.
The Independent Children's Lawyer proposes that the child live with the mother and that she be permitted to remove him from Australia to New Zealand until the end of the October school holiday period 2010 and from January 2011 until the end of the first half of the April 2011 school holiday. The father is to spend alternate weekends with the child while he is in Sydney from after school on Thursday until the start of school on Monday and half the school holiday periods. When the child is not in Australia, the father spend periods of not less than 3 nights with the child.

History of orders relating to the child’s travel

In August 2009 the Court ordered, inter alia, (by consent of the parties) that the mother be permitted to travel with the child to New Zealand from

18 September 2009 until 9 October 2009. In November 2009, again by consent, the Court ordered that the mother be permitted to take the child to the USA from after 24 December 2009 until 14 February 2010. The parties agreed between themselves that the mother could take the child to the USA from between 23 March 2010 and 19 April 2010. On 11 August 2010 the Court

(by consent) ordered that the mother be permitted to take the child

to New Zealand from 12 August 2010 until 16 August 2010. Those orders were extended by the Court permitting the child to remain in New Zealand until the determination of the Interim Hearing.

Report of the Single Expert

In August 2009 the Court ordered that an expert be appointed to report on the issues between the parties relating to the child. Dr R (“the expert”) was appointed. His report is dated 23 October 2009.
Counsel for the mother contended that the report should be rejected and excluded from consideration by the Court on this Interim Application and in any further proceedings between the parties.
A number of bases were advanced for this application – apprehended bias, unreliability and the operation of s 135 of the Evidence Act 1995 (Cth).
Apprehended Bias
It is necessary to give some background to understand the application.

The father alleged that he met the mother at a brothel where she was working as a prostitute and which he attended as a customer. The mother denied this was the case and denied that she had worked as a prostitute.
In the preamble to his report, the expert referred to the documents which had been sent to him and which he had read. Included in that list were several affidavits of the mother, in one of which she traversed and denied the assertion that she had been a prostitute.
The expert referred to the assertion that the mother had worked as a prostitute in three places in his report. The first is at page 3 under the heading “Review of Documents” where he referred to the father’s affidavit and said “He stated on page 10 of his affidavit point 74 that he met her at […], a brothel in Sydney when she was working as a prostitute”. The expert noted in the course of outlining his interview with the mother: “She didn’t mention any work in the sex industry, I therefore don’t have any corroboration about these comments from (the father’s) affidavit”. Finally under the heading “Summary” the expert noted: “The affidavits also suggested from (the father) that they had met at a brothel. However, this information was not elicited from the mother or corroborated by her”.
It seems that the expert did not directly raise the assertion with the mother during their conversations.
It was argued by Senior Counsel for the mother that if the expert had read the mother’s affidavit as he noted in the preamble to the report, he either did not read it completely or misinformed himself because he did not refer to her denial contained in the affidavit. Senior Counsel submitted that it is significant that although the expert mentioned the allegation three times, he did not mention her denial.
It was argued for the mother that a fair minded observer would feel that the expert had taken that assertion into account in some unspecified way and used it to form his conclusions in a way adverse to the mother. Senior Counsel for the mother was unable to articulate the prejudice which he feared might be occasioned to the mother and which would give rise to the apprehension of bias or how the impugned remarks might have infected the expert’s reasoning process.
As the NSW Court of Appeal observed in O’Sullivan v Medical Tribunal of NSW:[1]
“Nevertheless, the fair-minded lay observer is a construct of the law: he or she must be assumed to have a degree of knowledge of the circumstances and structure within which the law is administered…”
“Further, the fair-minded observer must be taken to understand the general nature of the proceedings…”
[1] [2009] NSWCA 374 at 40 and 41
If one accepts the analogy as being appropriate and considers the fair-minded lay observer, that observer would be informed by the knowledge that the report in an interim hearing is untested but the maker would be subject to cross examination in a final hearing. The observer would also understand that the constraints of an interim hearing are such that the expert’s report might attract less weight because there is no opportunity to question the author of the report. Armed with that knowledge, I do not believe that such an observer would apprehend bias.
The concept of apprehended bias is generally associated with reference to prejudgment of issues by a trier of fact. It was argued that it is an appropriate analogy by which to make the objection. I am not persuaded that it is. There is in my view a significant difference between the adjudicative role and an expert who provides evidence to the court that is assessed as part of the adjudicative process.
The conduct of experts in this Court is governed by r 15.59 of the Family Law Rules 2004 (Cth) which imposes obligations on an expert to (inter alia) “give an objective and unbiased opinion that is also independent and impartial…”.[2]
[2] Rule 15.59(3)(a) Family Law Rules 2004 (Cth)
The argument put was that the expert had either engaged in a process of reasoning that was flawed or had given inappropriate weight to the allegation of prostitution to the disadvantage of the mother and to that end the report was unreliable. I am not persuaded that this submission is made out and I will not reject the report.
It was further argued that the mother has set out a number of asserted inaccuracies and shortcomings about the interview conducted by the expert. She asserts that during the interview process she was cut off from answering and not given sufficient time to explore issues with the expert. She challenges matters of fact that he asserts in his report. It was argued that these matters together with the expert’s reference to the alleged prostitution would cause the Court to reject the report as being so unreliable as to warrant its rejection.
The matters to which the mother deposes in her affidavit are, in my view, all matters which go to the weight to be attached to the report, not to its admissibility.
Section 135 Evidence Act
It was argued that the report should be rejected in exercise of the discretion reposing in s 135 of the Evidence Act 1995 (Cth) and counsel relied on each subheading within the section to justify the exclusion.
Section 135 is in the following terms:
“The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might;
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time”
Before any question of discretionary exclusion of the report is considered,

I must first determine the probative value of the report. In this assessment it is as relevant to keep in mind that there is no opportunity for testing of evidence including the report, as it is the asserted shortcomings and factual errors made by the expert alleged by the mother. Therefore any assessment of probative value is somewhat constrained.
In assessing the weight to be attributed to the report I also take into account that at the time of its preparation, the father and the child had only had about four periods of time together since separation and much has evolved in their relationship since then.
The expert’s report provides a narrative on the interaction between the child and his parents and the parents’ views and attitudes to issues concerning

the child. It offers opinions about the relationship of the child with each of his parents at the time of writing. Although time has passed since the interviews and observations, the report nevertheless provides the Court with an indication of the relationships at that time. I am of the view that it is probative of a fact

in issue in these proceedings, namely the relationship between the child and his parents last year.
Turning then to the asserted grounds for exclusion. It is well understood that the “unfair prejudice” of which the section speaks is not the prejudice that might attach to the admission of evidence which will offer a forensic disadvantage to a party. The prejudice contemplated is that the finder of fact might misuse the evidence by relying on it in some improper way, perhaps overvaluing it.
The unfair prejudice asserted is that the trier of fact might give greater weight to the report than is appropriate in the light of the asserted errors of fact and the reference to prostitution without reference to the mother’s specific denials.

I am not persuaded that there is any unfair prejudice of the relevant kind occasioned by the admission of the report. Nor am I persuaded that there is any danger that the evidence, if received, would be misleading and confusing or give rise to undue waste of time.
I do not propose to reject the report.
Updated report
It is apparent that for the final hearing of the issues in this matter, a further report will be required. It was argued for the mother that another expert should be appointed to conduct the interviews and make the report. It is generally undesirable for children to be subject to multiple interviews in the preparation of reports. In my view it would not be appropriate for another expert to be engaged to prepare a report.

Parenting orders

It is the father’s contention that while in the past he and the mother had fostered and enabled the child’s participation in sport and had allowed him to spend significant time away from school, his sporting activities are now impacting on his educational progress and his relationship with the father.
The mother’s position is that the child should be permitted to continue to pursue this activity and his desire to be a world champion sportsman and should be allowed to continue the overseas travel regime commenced during the marriage. It is contemplated that the time the child spends overseas will increase with the increasing demands of the sport and his ability to secure the best coaching and competitive advantages. The mother proposes that depending on where the child is training, he will either be enrolled in a school associated with the training program (USA) or will receive tutoring (New Zealand).
The Interim Orders sought by the parties all depend to a certain extent on whether the child is permitted to be away from Australia in pursuit of this ambition.
There are many factual disputes between the father and mother about the issues central to this determination. It is not possible within the scope of a circumscribed hearing where there is no testing of the assertions made by the parties, to determine contested issues of fact.
Relationship with the father

It appears from the affidavits that there was a period after separation of the parties when the father did not see a great deal of the child. There is a dispute between the parties as to why this was so.
The expert interviewed the father and mother each with the child in September 2009. He said that he believed that in the past the father and the child had a strong bond. During the observation, he noted that the child referred to some enjoyable activities he had undertaken with his father. The expert expressed the view that the child was aware of the dispute between his parents and wished to be loyal to his mother. He said that he believed that the relationship with the father was solid and with some normalcy between the parents, could develop. The expert said that the mother and child had a close loving relationship. His concerns were that the child seemed enmeshed in the dispute and as a result felt loyalty to his mother and in a sense reflected her anxiety.
Since the time of the report matters have moved on and from the affidavits it seems that the child is expressing a reluctance to spend time with his father. The father refers to the child crying when he is collected by him but said that he settles shortly afterwards. It seems that although strained, the child is spending the allocated time with the father.
The father said that his relationship with the child has deteriorated over time. He said that the child is rude and discourteous to him and will not comply with requests. The father claims that the mother has interfered with his time with the child, has acted to thwart him having time with the child and has encouraged the child to disrespect him. This is denied.
The mother says that she has encouraged the child to see his father but the child does not want to go and is unhappy and distressed at the prospect. From about the middle of this year, he has run away from school on three occasions. According to the mother’s affidavit, the child complained that he did not want to go to see his father. The mother said that she managed to persuade him to attend.
It seems from the affidavits of both the mother and father in which they report comments made by the child, he is distressed at the prospect that his father might oppose him pursuing competing and training overseas. No one suggested that the child is not genuinely passionate about the sport or that he does not believe that he can achieve greatness in that endeavour.
There is a clear benefit to this child in having a meaningful relationship with both of his parents. The expert’s report demonstrates that, at least so far as late 2009, he had a relationship with his father. To the extent possible, that should be encouraged.
The father’s primary submission is that on an interim basis, the Court order

a change of residence for the child and that he live with his father or, in the alternative that the child live with each parent or again in the alternative that the child live with the mother but spend weekends with the father.

The father’s proposals all involve the child not travelling to compete as he has in the past but involve his enrolment in the S School where, one imagines he will have time in his sport when not in the classroom.
There is no evidence before the Court as to how the child would react to a change from living with his mother to living with his father even on a week about regime. Particularly in the light of his present relationship with his father, it would be a matter on which the Court would want the assistance

of expert opinion. The available evidence does not enable me to conclude that it would be in the interests of this child to cause such a change in his settled circumstances.
Overseas Travel
During the marriage and to a considerable degree since separation, the parents have encouraged and facilitated the child’s sporting aspirations. At no point did either express any doubt that his ambition to compete with the elite

of his sport was far fetched. Indeed they have paid for him to be coached by the sport’s eminent exponents. Since separation, albeit in circumstances of controversy, the father has agreed to the child to continue travelling and competing. It was submitted that the father’s agreement to the travel since separation has resulted from him finding himself in a difficult position.

That is as may be, but from the child’s perspective, his father has agreed to

a continuation of the travel. It is also apparent from what the child has said

to his father and mother that he understands that his father opposes him continuing to travel. The child is reported to have commented that his father

is “ruining his life”.
Counsel for the father submitted that to allow the child to travel amounted to “giving him what he wanted”. I do not accept that characterisation of the issue. The Advocate for the Independent Children's Lawyer submitted that if the Court made an order preventing the child from travelling overseas to compete, he would probably blame his father. There is force to this submission. Certainly, there is no evidence on which I could find that the child’s relationship with his father would be improved by circumstances where he was stopped from travelling and competing. Common sense might dictate that

at this stage in the various relationships, if the child believed that the father had actively prevented him from doing that which he desired it would not make things better between them.
There is also no evidence to support the proposition that if the child

is permitted to spend large amounts of time out of Australia, it would

be disastrous to the relationship with his father. I am conscious that in the past attempts have been made to provide for the father to spend time with the child while he is out of Australia. It is undisputed that they have not been particularly successful although the reason why is a matter of contention.

The father does not suggest that the child’s training regime be suspended for the purposes of spending time with him. It was said that the child will not engage in his sport with his father, and therefore there was no prospect of the father having time with the child overseas. I am of the view that provided appropriate time and arrangements are put in place beforehand, the father can spend time with the child in the evenings or by watching him train and compete. I am not persuaded that there could be no arrangement made for time to be spent together while the child is out of Australia. It follows that I do not accept the argument that to permit the child to leave Australia and continuing training and competing will cause irreparable harm to his relationship with his father. There is force in the submission that to prevent that, might well have that effect.
Schooling
Although the child has attended several different schools and there

is contention between the parents about the optimal school for him, he has at least since 2008 been attending C Primary School. During his absences from regular schooling, he has been tutored and has attended schools associated with the training camps he has attended.
The father says that notwithstanding those strategies, the child is falling behind his peers and believes that his education should have priority over his sporting desires.
A letter from the Principal of C Primary School of 17^th August 2010 (annexure A to the father’s affidavit of 24^th August 2010) noted:
“From [the child’s] mid year school report and during recent interviews with his class teachers it has been established that [the child] is a capable learner who is achieving at a sound level.
Regardless, [the child] has been placed in the support class for his literacy and numeracy programs. This decision was made not because of his ability to learn, but because of gaps detected in his learning.
The letter goes on to comment on the child’s absences from school in the earlier part of the year and continued:
“…should [the child’s] attendance at school be unbroken from this point, he would no longer attend the support group. However, he has now left school again for the rest of the term.
In response to your question about the effects of [the child’s] absences, his teachers are concerned that each time he returns to school time needs to be spent catching up rather than working towards his potential.”
The reason for the child’s attendance in the support group class is disputed by the mother, who in her affidavit filed in Court on the day of the hearing referred to a conversation with the principal to different effect. The Court was informed that while the child is presently training in New Zealand, he is receiving coaching. A report from his tutor (annexure B, mother’s affidavit 26^th August 2010) indicates that he is attending for English and Maths tutoring four nights a week and if C Primary School is prepared to send a learning program, the coaching institution would be prepared to support the child in working through the program. Such assessment as they have conducted of the child demonstrates that he is working at average ability in maths but is below that standard for reading and comprehension.
In the future the child’s education to school end will need to be considered and no doubt in a final hearing there will be competing arguments about the advisability of pursuing a sporting career at the expense of regular attendance at school.
However, the evidence does not persuade me that the absences from school in the recent past and in the near future will have such a deleterious impact on the child’s education that of itself should prevent him in the interim from travelling overseas to train and compete in his sport.

Discussion

The procedures in a hearing such as this are necessarily abridged and there is no testing of assertions and positions through cross examination. As I have already indicated, there are many issues in hot dispute between the parties and which cannot be determined in such a hearing. I am mindful that when one is considering an application relating to a child, the best interests of the child are paramount.
There is no doubt from the affidavits that the child is firmly committed to a career as an elite sportsman and that this desire has been fostered and encouraged by both his parents. It is also clear that they were both content, before separation, for his sporting pursuits to take precedence over his attendance at school.
The objective evidence and the consensus between the parents is that he

is extraordinarily gifted at this sport. For whatever reason, the child has become invested in the dispute to the extent that he has been reported to say that his father was trying to ruin his career by preventing him from going overseas.
As the father’s counsel pointed out, the child is now older, his education

is important and the proposed time he spends overseas is in reduction of time that he might spend with his father. The father placed great reliance on the expert’s conclusion that; “The child’s ability to maintain a healthy relationship with both parents is more important than his sport.”
Perhaps few people would argue with that view and no doubt it will be a matter that looms large in the final hearing.
The mother’s proposal has the child outside of Australia and without spending much time with his father for many months. It also involves him missing many months of schooling. However, he is still very young and although he is missing school, he appears to be able to at least catch up when he returns to regular schooling. Perhaps if C Primary School was prepared to provide a curriculum or teaching plan, his tutors could work with him through that program.
The proposals of the Independent Children's Lawyer are in a similar vein

to those of the mother but modified somewhat to the extent that it is proposed that the child should spend less time overseas.
I am mindful that the question of whether this child continues in his present course of training and being away from school for long periods or some other course is adopted is one that will require careful analysis at the conclusion

of full exposure of the issues. It is not one to be determined on an interim basis.
It is to the benefit of this child to have a meaningful relationship with both

of his parents. I am not persuaded that it is in his interests on an interim basis to change the person with whom he lives nor that he should be prevented from continuing to train and compete overseas.
In coming to that decision I am mindful that attempts by the father to spend time with the child while he has been overseas has not been marked with success. The reason for that is the subject of contention and about which I can make no finding.
I will make orders that the child be permitted to remain in New Zealand until the commencement of school Term 4 and I will further make orders that permit him to travel to the USA from 10 December 2010 and to remain away until the commencement of the school Term 2. Thereafter he is to return to school.
I propose to make orders that will give the father continuous time with the child while he is away on condition that the father ensures that the child attends all his scheduled commitments. When the child is in Australia, I propose to order that he spends time with his father each alternate weekend from Thursday after school until the start of school on Monday morning. There is nothing that otherwise persuades me that he should spend day only time with the father. One would expect that the adults in this relationship could use their undoubted resources to both keep the child out of the dispute and encourage him to value and appreciate his time with the other parent.
Sole parental responsibility for schooling
The mother sought an order that she have sole parental responsibility for choosing the child’s school.
Although there has been significant contention about which school the child should attend, the issue at this hearing devolved to whether he should

be allowed to be absent from school for long periods. At one stage both parents contemplated the child should attend S School but the mother has expressed reservations because of an allergy suffered by the child which is precipitated by mould. In my view, the issue of what school the child should attend in the long term is very much bound up in the larger issue of how his education should be provided to him in the years to come.
He has been attending C Primary school since 2008. Neither party has expressed strong objection to that school although the mother has expressed some reservations. Pending the final resolution of the issues between the parties, the child should continue to attend that school while he is in Australia and while the School is prepared to permit him to remain.
There is no evidence on which I could find it appropriate to make an order reposing sole parental responsibility for his schooling in the mother

on an interim basis.
Subpoena to Ms B
Pursuant to orders made by this Court on 26 February 2010, the parties engaged in Family Therapy with Ms B. Apparently a series of appointments were made that contemplated joint and individual sessions as well as sessions with the child. According to the mother’s affidavit of June 2010 some of those sessions took place but there was confusion or delay about arranging a joint session with the father before the mother and child left Australia. The mother says that in April 2010, the therapist’s receptionist conveyed to her the message that the therapist had decided not to continue with the therapy. There then followed an email correspondence from which it seems the therapist believed that the mother had cancelled all of the appointments, the mother denied this and asserts that she only cancelled one.
There was email correspondence between the mother and Ms B. In a final email, Ms B said “However, if [the mother] is to bring [the child] to the appointments, I will require that he be dropped off at my rooms at the start time and collected at the end of the sessions. I also require that you do not threaten or intimidate my staff”. The mother denies that she threatened or intimidated Ms B’s staff.
The mother makes several complaints about Ms B and says that she has lost confidence in Ms B as a therapist.
The order of 26 February 2010 included the following:
“Mother and Father restrained from issuing a subpoena to the therapist to attend to give evidence or for production of records.”
The father submits that this order should be set aside and the Court give leave for a subpoena to be issued to Ms B for production of her notes.
It was argued that the mother, in quoting freely from her conversations with the therapist, has broken confidentiality and in so doing provided a basis for the father to have access to Ms B’s notes.
As this argument developed, it appeared that the quest for Ms B’s notes had two bases. First, it was said that the notes may reveal how the mother behaved in the therapy and whether she, in effect, acted to sabotage the proposed therapy. The second basis for the application is founded in a comment that the therapist apparently made to the father to the effect that he should research the concept of “parental alienation”. It was argued that her notes may provide evidence that the child is being manipulated against the father by the mother’s actions.
Counsel could not articulate with any greater precision what might be in the notes other than as I have indicated.
While perhaps not directly on point, the authorities relating to applications

to set aside subpoenas are still useful to this consideration to the extent that they direct themselves to relevance. The threshold of establishing relevance

for the issuing of a subpoena is not a particularly high one,[3] the party issuing the subpoena must establish a legitimate forensic purpose seeking access to the documents. That is a party seeking access to documents must “identify expressly and precisely the legitimate forensic purpose for which access to documents is sought”[4]
[3] Killorgan Investments Pty Ltd v Baycorp Advantage Information Services Limited [2002] VSC 270
[4]NSW Commissioner of Police v Tuxford [2002] NSWCA 139 at [21] citing Barr AJ in Principal Registrar of the Supreme Court v Ali Tastan (1994) 75 A Crim R 498.
The relevance of any notes by Ms B is said to add weight to the opinion expressed by the expert about the mother’s relationship with the child and

to obtain evidence about the mother’s conduct. As to the first, that the therapist had limited contact with the mother and the nature of the interaction must be such as to limit any weight to be given to any opinion formed by her (assuming that the therapist has the requisite expertise to offer the opinion). Nonetheless

I could not find that the notes were irrelevant to the issues to be determined and to that extent, a legitimate forensic purpose established.
However, the order restraining parties from seeking access to notes or from calling evidence from the therapist must have been made in contemplation that the process be, so far as possible confidential. Clearly the order of 26 February 2010 did not restrain the parties from giving their views or from repeating what was said in the counselling. An order that has the effect of removing that protection would only be made in compelling circumstances.
Despite finding a degree of relevance to the application for access to the therapist’s notes, I am not persuaded that the circumstances of the case generally and in relation to this aspect specifically are such that the protection of that injunction should, at this stage be removed.

I certify that the preceding ninety one (91) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Ainslie-Wallace delivered on

8 September 2010

Associate:

Date: 8 September 2010

[2010] FamCA 780

8 September 2010

Key Legal Topics

Areas of Law

Family Law

Evidence

Legal Concepts

Expert Evidence

Remedies

Procedural Fairness