McDougall and McDougall
[2017] FCCA 2907
•26 October 2017
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MCDOUGALL & MCDOUGALL | [2017] FCCA 2907 |
| Catchwords: FAMILY LAW – Practice and procedure – subpoena issued to family counselling agency – confidentiality and inadmissibility – abuse of process – subpoena struck out. |
| Legislation: Family Law Act 1975, ss.13C, 10D, 10E, 10C, 10B, 69ZT, 10H, 10J, 60I, 60J, 65F Civil Dispute Resolution Act 2011 |
| Cases cited: Smirnov & Turova [2009] FMCAfam 1083 Trapp & Vonne [2009] FMCAfam 497 UnitingCare – Unifam Counselling & Mediation & Harkiss & Anor [2011] FamCAFC 159 Lukies v Ripley (No.2) (1994) 35 NSWLR 283 AWA Ltd v Daniels (t/a Deloitte Haskins and Sells), Rolfe J, 18 March 1992, (unreported) R v. Baden-Clay [2013] QSC 351 R v Liddy (No.2) (2001) 79 SASR 401 |
| Applicant: | MS MCDOUGALL |
| Respondent: | MR MCDOUGALL |
| File Number: | WOC 1171 of 2016 |
| Judgment of: | Judge Harman |
| Hearing date: | 26 October 2017 |
| Date of Last Submission: | 26 October 2017 |
| Delivered at: | Wollongong |
| Delivered on: | 26 October 2017 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Hartley of McNamara & Associates |
| Solicitors for the Respondent: | Mr Tobin of Johnston Tobin Solicitors |
| Counsel for the Independent Children’s Lawyer | Ms Ung of Legal Aid NSW Nowra Family Law |
ORDERS
The matter is listed for Final Hearing before Judge Harman at 10.00am on 18 May 2018 and to continue until completion.
Decline to Order a Family Report.
Direct the Applicant to file and serve all Affidavit material on which she intends to rely at trial no later than close of business on 20 April 2018.
Direct the Respondent to file and serve all Affidavit material on which he intends to rely at trial no later than close of business on 20 April 2018.
The parties are to comply with the payment of any setting down and/or daily hearing fee in accordance with the Federal Circuit Court Regulations 2000 or as otherwise directed by the Registry Manager.
Direct each party and the Independent Children’s Lawyer to file a Case Outline directly by email in word format to my Associate no later than close of business 11 May 2018, such Case Outline to incorporate:
(a)The material that is relied upon by that party or the Independent Children’s Lawyer, being one Affidavit per witness together with any Affidavit in reply;
(b)The material from which tender is to be made in that party or Independent Children’s Lawyer’s case and unless entirely impracticable copies of all documents proposed to be tendered shall be served with the case outline;
(c)A chronology of events;
(d)A draft trial plan (preferably agreed) to ensure the matter is contained to its allocated time (including 75 minutes for Judgment).
Leave is granted to the parties in the event that the matter is resolved and Terms of Settlement prepared and signed to forward those Terms to my chambers for the purpose of orders being made in Chambers and hearing dates vacated.
Any further subpoena for the production of documents shall be filed and served and so as to require production of material to the Court not less than 21 days prior to the allocated hearing dates and the party issuing same shall ensure that all necessary steps are taken to have obtained leave to inspect material expeditiously and all parties shall ensure that they have inspected material and tabulated same (in the event that tender or cross examination on those documents is proposed) prior to the hearing (as no time will be made available for inspection of that material prior to the hearing commencing).
By consent further Interim Orders are made in accordance with the Terms of Settlement executed by the parties and the Independent Children’s Lawyer marked Exhibit ‘A’ attached hereto.
Direct the Independent Children’s Lawyer to provide a typescript of the Terms of Settlement made today in word format direct to my Associate by email within 7 days of today’s date.
Strike out the subpoena addressed to the Proper Officer (omitted) filed 31 August 2017.
Direct that all material produced by Anglicare be returned to that service together with a copy of this Order.
IT IS NOTED that the subpoena to Anglicare seeks to obtain or has the effect of obtaining material that relates to the parties’ assessment for and participation in family counselling services (as the parties were ordered to attend by Orders made 16 February 2017 and 19 May 2017) and, thus, impermissibly seeks to interfere with the confidentiality of communication between the family counsellor and seeks the production of material that is not and cannot be admissible and, as such, there is no forensic purpose to the subpoena which is otherwise an abuse of process.
Pursuant to S.65DA(2) and S.62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order are set out in the Fact Sheet attached hereto and these particulars are included in these Orders.
EXHIBIT ‘A’
That the child, X born (omitted) 2015 shall live with the mother.
That the child shall spend time with the father as follows:-
(2.1) From 8am to 12.00noon on each Saturday;
(2.2) On Christmas Day from 7.00am to 12.00noon;
(2.3) At all other times as agreed between the parents in writing.
That the parents do all things necessary to facilitate changeovers of the child at the commencement and conclusion of time at the maternal grandmother’s place of residence, being (omitted).
That each of the parents be restrained from denigrating and making critical remarks about the other parent in the presence and/or hearing of the children and shall remove the child from the presence and/or hearing of any third party so doing.
That each of the parents is to notify the other parent and the Independent Children’s lawyer of any change to their residential address within 48 hours of such change occurring.
That each of the parents is to notify the other parent of any change to their telephone number within 24 hours of such change occurring.
That the father shall refrain from consuming alcohol from 12 hours prior to spending time with the child and during any period of time that he spends with the child.
IT IS NOTED that publication of this judgment under the pseudonym McDougall & McDougall is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT WOLLONGONG |
WOC 1171 of 2016
| MS MCDOUGALL |
Applicant
And
| MR MCDOUGALL |
Respondent
REASONS FOR JUDGMENT
These proceedings relate to the determination of interim parenting arrangements for a young child, X born (omitted) 2015. X has recently turned two years of age.
The parties to these proceedings are X’s parents, Ms McDougall, the child’s mother and Applicant and Mr McDougall, the child’s father and Respondent.
The parties are engaged in litigation in relation to X’s future care arrangements. The number of issues in dispute has reduced somewhat from their presentation even at the time that an Amended Application was filed only some seven weeks ago.
There had been significant issues as to whether X would spend time with her father on an unsupervised basis. That issue is no longer pressed and interim Orders have, today, been made which provide for brief but unsupervised periods of time between the father and young X. The issue that has come to light today, the proceedings having returned to the Court following the appointment of an Independent Children’s Lawyer, is the issue of a Subpoena for the production of documents addressed to a family counselling organisation.
It is germane to observe that at the first Court event, 16 February 2017, an Order was made pursuant to section 13C of the Family Law Act 1975 compelling the parties to attend upon a specified family counselling agency, an Attorney-General designated family counselling provider, for the purpose of assessment for suitability of family counselling and, subject to assessment of suitability, to then attend upon the family counsellor and complete such services as might be assessed as suitable. The family counselling is subject to provisions of the Family Law Act 1975 and, in particular, sections 10D and 10E of the Act:
FAMILY LAW ACT 1975 – SECT 10D
Confidentiality of communications in family counselling
(1) A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.
(2) A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3) A family counsellor may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person; or
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5) A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.
(6) Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the counsellor's evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.
(7) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(8) In this section:
“communication” includes admission.
FAMILY LAW ACT 1975 – SECT 10E
Admissibility of communications in family counselling and in referrals from family counselling
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family counsellor conducting family counselling; or
(b) a person (the professional) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
c) in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3) Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(4) A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
Sections 10D and 10E respectively:
a)Render communications between a party and a family counsellor confidential; and,
b)Render inadmissible in these proceedings anything said or any admission made to or in the company of a family counsellor.
In circumstances wherein the parties have been Court mandated to participate in family counselling services, which services attract confidentiality and inadmissibility, the above Subpoena has been issued. The Subpoena has been complied with in that the entire file of the family counsellor has been produced to the Court.
The documents that have been produced have not, in fact, been inspected. They have been with the Court since 20 September 2017. As material has been produced it might be argued that the family counsellor consents to the production of material. However, the duty of confidentiality binds the family counsellor to keep confidences and not release information. The duty is clearly set out in section 10D(1) of the Family Law Act 1975 as:
A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.
As material has been produced, it becomes necessary to ascertain whether the disclosure made by the family counsellor in producing material is authorised by section 10D of the Act. If it is not, then the production of material as required by the Subpoena is a breach of the family counsellor’s duty of confidentiality separate to any issue as to whether the Subpoena ought to have been issued.
The confidentiality of family counselling is not absolute. Importantly, confidentiality is only attracted when a family counsellor[1] is engaged in providing family counselling.[2] [3] There is no issue in this case that the parties were engaging in family counselling. They were doing so pursuant to an Order of the Court.
[1] Defined by section 10C(1)(b) of the Family Law Act 1975. A family counsellor must be “…a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph”. Section 10C(2) of the Act then requires the Federal Attorney General to publish a list of designated organisations. The list of organisations can be found at Defined by section 10B of the Family Law Act 1975 as:
Family counselling is a process in which a family counsellor helps:
(a) one or more persons to deal with personal and interpersonal issues in relation to marriage;
or
(b) one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:
(i) personal and interpersonal issues; [or]
(ii) issues relating to the care of children.
On the basis that parties have been ordered to a specific accredited agency for the purpose of assessment of suitability for and, subject to that assessment being positive, engagement with family counselling services then, prima facie, the services engaged in pursuant to that Order would be family counselling services.
[3] See Smirnov & Turova [2009] FMCAfam 1083; Trapp & Vonne [2009] FMCAfam 497.
Confidentiality is subject to a number of exceptions as set out in section 10D(4) above. A family counsellor must disclose otherwise confidential information if the family counsellor “…reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory”. [4]
[4] Section 10D(2) of the Family Law Act 1975. An obligation to mandatorily disclose may arise under State and Territory child protection legislation regarding mandatory notification. For a discussion of those responsibilities see >
A family counsellor may[5] (emphasis added), at the discretion of the family counsellor,[6] disclose material if a family counsellor reasonably believes such disclosure is necessary to protect a child from a risk of harm.[7] No such allegation arises in these proceedings.
[5] For a discussion on this point see UnitingCare – Unifam Counselling & Mediation & Harkiss & Anor [2011] FamCAFC 159.
[6] As was made clear by UnitingCare – Unifam Counselling & Mediation & Harkiss & Anor, the discretion to release otherwise confidential information, even when it falls within the exceptions to confidentiality created by section 10D of the Family Law Act 1975, rests with the family counsellor. The family counsellor cannot be directed to exercise that discretion in any particular fashion. The fact that one of the exceptions to confidentiality exists does not compel disclosure but only permits disclosure.
[7] Section 10D(4)(a) of the Family Law Act 1975. This risk of harm would presumably fall short of a significant risk of harm, to use the terminology of the Children & Young Persons (Care & Protection) Act 1998 (NSW), such as to compel a mandatory report to the Child Welfare Agency under the State Act and, thus, as required by section 10D(2) of the Family Law Act 1975.
A family counsellor may breach confidentiality if the family counsellor reasonably believes that the disclosure is necessary for the purpose of lessening a serious or imminent threat to the life or health of a person.[8] This does not arise.
[8] Section 10D(4)(b) of the Family Law Act 1975.
A family counsellor may breach confidentiality if it will report the commission or prevention of the likely commission of an offence of violence or a threat of violence against person or property or to lessen that threat.[9] Again, that does not arise.
[9] Section 10D(4)(c)-(e) of the Family Law Act 1975
A family counsellor may disclose a communication if consent is given by the parties who have attended upon them.[10] The issue of Subpoena does not infer or imply consent even if a party is aware of the Subpoena and makes no Objection (and in this case, there is no Objection to the Subpoena, its issuance or the filing of a Notice of Request to Inspect raised by either parent).
[10] Section 10D(3) of the Family Law Act 1975
A family counsellor may also disclose information for research purposes.[11] This Subpoena is not issued for research purposes.
[11] Section 10D(5) of the Family Law Act 1975
There is only one basis for interference with confidentiality that could possibly arise in this case and that is section 10D(4)(f) of the Act. A family counsellor may disclose a communication if the family counsellor believes the disclosure is necessary (emphasis added) for the purpose of assisting an Independent Children’s Lawyer representing the best interests of a child to do their job properly. The disclosure must be necessary, not desirable or helpful but necessary. Additionally, the disclosure must be to the Independent Children’s Lawyer and not others.
Producing the material to the Court in response to a Subpoena places that disclosed in the public domain, as it were, as upon the filing of a Notice of Request to Inspect, both parties and their lawyers as well as the Independent Children’s Lawyer are able to inspect the material and thus the disclosure is to all and impermissible.
There is nothing to suggest, on the face of the documents produced, that would suggest that this ground could apply. That which the parties have disclosed does not suggest any threat, admission of threat, allegation of risk of harm or the like. It is not necessary for the disclosure of the information contained within the documents produced to enable the Independent Children’s Lawyer to do their job properly.[12] In those circumstances, the family counsellor is left only with their duty of confidentiality as set out in subsection (1) above, that they must not disclose a communication made to the counsellor whilst the counsellor is conducting family counselling unless it is required or authorised by the section. By producing material in response to the Subpoena the family counsellor has, prima facie, breached their duty of confidentiality.
[12] The material disclosed to the Independent Children’s Lawyer would be inadmissible as a consequence of the operation of section 10E of the Family Law Act 1975. Further, it would not be possible for any disclosure to be directly introduced as it would be second-hand hearsay excluded by Part 3.2 Divisions 1 and 2 of the Evidence Act 1995, such that not even the non-application of those portions of the Evidence Act 1995 provided by section 69ZT(1) of the Family Law Act 1975 could render the evidence, in that form, admissible or probative by reference to section 69ZT(2) of the Family Law Act 1975 and sections 135 and 136 of the Evidence Act 1995. Further, it would be necessary for the Independent Children’s Lawyer to give sworn evidence and be exposed to cross-examination (which might be undesirable and/or lead to an Application for removal) or seek to call the family counsellor to give evidence (which would face the same difficulties as arise from the Subpoena). The disclosure of information to an Independent Children’s Lawyer would best be used as the basis of obtaining admissible evidence per Young J in Lukies v Ripley (No. 2) (1994) 35 NSWLR 283 citing AWA Ltd v Daniels (t/a Deloitte Haskins and Sells), Rolfe J, 18 March 1992, (unreported).
The material produced should never have been forwarded to this Court by the family counselling agency. The approach that should have been adopted by the family counselling service was to raise an Objection to the Subpoena with those who had caused it to issue[13] and, absent a response and agreement to withdraw the Subpoena, an Objection ought to have been filed which would have led to the Subpoena being struck out. No such Application was made.
[13] Basic guidance on the topic is provided for free by the NSW Legal Aid Commission’s website at >
I accept and appreciate that cost is incurred by an agency in prosecuting such an Objection. However, as one would think the decision in UnitingCare – Unifam Counselling & Mediation & Harkiss & Anor might have demonstrated, costs would have followed and the outcome of the Objection was relatively guaranteed. The Subpoena would have been struck out as it has been.
There can be no forensic purpose for the Subpoena. That arises from section 10E of the Act, again as set out above. On that basis, it is improper to have caused the Subpoena to issue.
As section 10E of the Family Law Act 1975 makes clear, evidence of anything said or any admission made by or in the company of a family counsellor, conducting family counselling, (or for that matter, any person to whom a family counsellor might refer that party for the purpose of receiving medical or other professional consultation) is not admissible in any court, whether or not exercising federal jurisdiction, (subject of course to decisions such as R v. Baden-Clay [2013] QSC 351 and others[14] which limit that restriction to proceedings under the Family Law Act 1975).
[14] R v. Baden-Clay [2013] QSC 351; R v Liddy(No 2) (2001) 79 SASR 401.
The only exception to the prohibition against admissibility is to permit evidence of admissions by an adult in relation to abuse, or risk of abuse of a child, or a disclosure by a child that they have in fact been abused, or are at risk of abuse. Even that exception to inadmissibility is limited, as the evidence is only admissible if the Court is satisfied that there is insufficient evidence of the admission or disclosure available from other sources. On that basis, the evidence produced, even if the material fell within one of the discretionary or even mandatory categories for waiver of confidentiality, must be inadmissible. The Subpoena to the family counselling service is one of 6 Subpoena issued. Upon a consideration of the agencies to whom the remaining 5 Subpoena have issued, it would be difficult to suggest that even if an admission or disclosure of abuse had been made (and there is no suggestion that one has – it is not an issue in this case) that there would be insufficient evidence of the admission or disclosure available from other sources.
As such, the confidential and inadmissible material could not properly be produced to the Court, nor more importantly, could a Subpoena properly issue for the production of records which manifestly, by reference to section 10E of the Family Law Act 1975, cannot be admissible before the Court. In those circumstances, I have taken the step, of the Court’s own motion, to dismiss the Subpoena. The issue of such Subpoena is, regrettably, and particularly within this Registry of the Court, a recurring theme. It is not the first occasion let alone the first occasion this week in which such a Subpoena has been issued, again regrettably, largely by Independent Children’s Lawyers, in circumstances whereby parties have been directed, ordered and Court mandated to participate in confidential family counselling services, the records of which are inadmissible and a Subpoena is nonetheless issued.
The records produced also relate to and include material with respect to family dispute resolution. The provisions with respect to confidentiality and inadmissibility with respect to family dispute resolution are in similar though not identical terms to those relating to family counselling. The differences need not be highlighted at this point. The same argument thus applies with one important qualification.
Regulation 25 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 provides that prior to determining to offer family dispute resolution that a family dispute resolution practitioner must assess or must be satisfied that some other person has assessed the suitability or appropriateness of family dispute resolution. That regulation, together with sections 10H and 10J of the Family Law Act 1975 dealing with confidentiality and admissibility of communications in family dispute resolution, are also set out below.
FAMILY LAW (FAMILY DISPUTE RESOLUTION PRACTITIONERS) REGULATIONS 2008 - REG 25
Family dispute resolution practitioners -- assessment of family dispute resolution suitability
(1) Before providing family dispute resolution under the Act, the family dispute resolution practitioner to whom a dispute is referred must be satisfied that:
(a) an assessment has been conducted of the parties to the dispute; and
(b) family dispute resolution is appropriate
FAMILY LAW ACT 1975 - SECT 10H
Confidentiality of communications in family dispute resolution
(1) A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.
(2) A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3) A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over--that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person; or
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5) A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.
(6) A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).
(7) Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the practitioner's evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.
(8) In this section:
“communication” includes admission.
FAMILY LAW ACT 1975 - SECT 10J
Admissibility of communications in family dispute resolution and in referrals from family dispute resolution
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family dispute resolution practitioner conducting family dispute resolution; or
(b) a person (the professional) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c) in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3) Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).
(4) A family dispute resolution practitioner who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
To the extent that the material sought and produced relates to family dispute resolution, that material is similarly confidential and inadmissible, save and except that which relates to any initial intake assessment meeting with a party or the parties for the purpose of determining whether family dispute resolution is appropriate and should be offered. It is, of course, open to the parties to decline the offer in which case there would be no further record. In this case there are further records as family dispute resolution proceeded. Those records are also inadmissible and subject to the requirements of confidentiality imposed by section 10H of the Act. That is an additional basis upon which the Subpoena is offensive to the legislative provisions.
The provisions of the Family Law Act 1975 dealing with family counselling and family dispute resolution, whether they are those contained within Part II set out above or those contained within Part VII, (being sections 60I, 60J and section 65F of the Act) are laws of the Commonwealth which are to be applied by this Court. As a consequence, for example, parties are required to produce a section 60I certificate to the Court before commencing proceedings or, alternatively, apply for and obtain, from a Registrar of the Court, an exemption from that requirement.
The inherent difficulty, of course, is that there are a variety of certificates which might be issued by a family dispute resolution practitioner by reference to section 60I(8) of the Act. Accordingly, proceedings can be commenced with a certificate that either evidences that the parties have attended family dispute resolution, (whether or not they have made genuine effort[15] or whether family dispute resolution was initially assessed as appropriate and was offered and commenced but then became inappropriate)[16] or that the parties have not attended family dispute resolution, (either because family dispute resolution was assessed as inappropriate[17] or because, whilst family dispute resolution was assessed as appropriate, a party failed or refused to attend).[18]
[15] Section 60I(8)(b) and (c) of the Family Law Act 1975.
[16] Section 60I(8)(d) of the Family Law Act 1975.
[17] Section 60I(8)(aa) of the Family Law Act 1975.
[18] Section 60I(8)(a) of the Family Law Act 1975.
The grounds for exemption from attendance at family dispute resolution are somewhat broad, indeed, broader than those which apply to pre-filing “genuine steps” as required by the Civil Dispute Resolution Act 2011. [19] However, it is important to remember that to obtain an exemption from attendance at family dispute resolution, a party must also comply with section 60J of the Act which provides:
[19] The Civil Dispute Resolution Act 2011 does not otherwise apply to proceedings under the Family Law Act 1975, although applying to most other civil Federal proceedings.
FAMILY LAW ACT 1975 - SECT 60J
Family dispute resolution not attended because of child abuse or family violence
(1) If:
(a) subsections 60I(7) to (12) apply to an application for a Part VII order (see subsections 60I(5) and (6)); and
(b) subsection 60I(7) does not apply to the application because the court is satisfied that there are reasonable grounds to believe that:
(i) there has been abuse of the child by one of the parties to the proceedings; or
(ii) there has been family violence by one of the parties to the proceedings;
a court must not hear the application unless the applicant has indicated in writing that the applicant has received information from a family counsellor or family dispute resolution practitioner about the services and options (including alternatives to court action) available in circumstances of abuse or violence.
(2) Subsection (1) does not apply if the court is satisfied that there are reasonable grounds to believe that:
(a) there would be a risk of abuse of the child if there were to be a delay in applying for the order; or
(b) there is a risk of family violence by one of the parties to the proceedings.
(3) The validity of:
(a) proceedings on an application for a Part VII order; or
(b) any order made in those proceedings;
is not affected by a failure to comply with subsection (1) in relation to those proceedings.
(4) If:
(a) the applicant indicates in writing that the applicant has not received information about the services and options (including alternatives to court action) available in circumstances of abuse or violence; and
(b) subsection (2) does not apply;
the principal executive officer of the court concerned must ensure that the applicant is referred to a family counsellor or family dispute resolution practitioner in order to obtain information about those matters.
Unless one of those exceptions apply, it is necessary, by reference to section 60J(4) of the Act, for the Applicant seeking an exemption from attendance at family dispute resolution to indicate, in writing, that they have received information about the services and options, including alternatives to Court action, available in their circumstances. The difficulty, of course, is that the provision is, in many cases, essentially circular. As it is possible to issue a section 60I certificate which warrants that family dispute resolution is inappropriate, one would think that if an Applicant had, in fact, obtained advice from a family counsellor or family dispute resolution practitioner, that a certificate might have issued indicating that family dispute resolution was inappropriate and, in which case, an exemption would not be required
Indeed, the section goes even further. It requires that if a party does not fall within the exemption on the basis of established past abuse or family violence or a prospective risk of abuse to a child or a risk of family violence and has not obtained advice from a family dispute resolution practitioner or family counsellor as to “…services and options (including alternatives to court action) available in circumstances of abuse or violence”,[20] then the principal executive officer of the Court must ensure that the Applicant is referred to a family counsellor or family dispute resolution practitioner to obtain the very advice which the section requires that they receive. That would appear, at least from the perspective of the Court and review of Applications for exemption that are granted by the Court, to be a provision of which many are completely ignorant or, if not ignorant, choose not to address. It is, however, a law of the Commonwealth.
[20] Being past, established abuse or family violence. Section 60J(4) of the Act does not apply when a prospective risk of abuse or family violence is alleged.
All of those factors suggest that there is a real difficulty in understanding the importance and basis of the provisions relating to confidentiality and inadmissibility of that which parties engage with in pre-Court actions or those which are mandated by the Court, intended to provide assistance to the parties. It is readily apparent that it is the intention of Parliament that parties will have access to and recourse to such services for their assistance, which may or may not impact upon or aid resolution of their dispute but which might improve the lot in life of their children through the provision of assistance to their parents.
The legislative provisions should be complied with. Any future non-compliance with the provisions, whether through the provision of documents in response to Subpoena when the provision of those documents is an impermissible breach of confidentiality through inappropriately issuing subpoena when that which is sought to be produced is clearly admissible in any proceedings, should be discontinued. These reasons will be sent to the family counselling organisation, together with the Order and the return of their documents in the hope that they might well cease in their practice of producing material which they are not compelled to produce (indeed, precluded from producing) in response to Subpoena which are, in turn, inappropriately and impermissibly issued.
I certify that the preceding thirty-five (35) paragraphs are a true copy of the reasons for judgment of Judge Harman
Date: 24 November 2017
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