N and G

[2008] FCWA 61

[2008] FCWA 61

JURISDICTION	:	FAMILY COURT OF WESTERN AUSTRALIA
ACT	:	FAMILY LAW ACT 1975
LOCATION	:	PERTH
CITATION	:	N and G [2008] FCWA 61
CORAM	:	CROOKS J
HEARD	:	12 DECEMBER 2007 & FINAL SUBMISSIONS ON 5 MARCH 2008
DELIVERED	:	13 JUNE 2008
FILE NO/S	:	PT 4510 of 2007

BETWEEN : N

Applicant/Husband

AND

G

Respondent/Wife

C

Third Party

Catchwords:

SUBPOENA – marriage counsellor – couples therapy – no Accreditation Rules for family counsellors in place yet – not a “family counsellor” within the meaning of the Family Law Act 1975 – application of common law privilege – exceptions to privilege – circumstances would not fall within an exception – notes of marriage counsellor privileged – subpoena set aside

Legislation:

Family Law Act 1975, s 4, s 19N, Div 2 - s 10B, s 10C, s 10D, s 10E
Family Law Amendment (Shared Parental Responsibility) Act 2006

Marriage Act 1961

Category: Not Reportable

[2008] FCWA 61

Representation:

Counsel:

Applicant:	Mr J Athanasiou
Respondent:	Mr E Martino
Third Party:	Ms P Keeley
Independent Children's Lawyer:	Ms J Johnston

Solicitors:

Applicant:	Ferrier Athanasiou & Kakulas
Respondent:	Paterson & Dowding
Third Party:	Clairs Keeley
Independent Children's Lawyer:	Calverley Johnston

Case(s) referred to in judgment(s):

Constable v Constable and Johnson [1965] ALR 938
Henley v Henley [1955] 1 All ER 590
Hutchings and Clarke (1993) FLC 92-373
M and M [2002] FamCA 493
McTaggart v McTaggart [1948] 2 All ER 754
Mole v Mole [1950] 2 All ER 328
Northern Territory v GPAO (1999) 196 CLR 553
Pais v Pais [1970] 3 All ER 491

Re D (Minors) (Conciliation

Disclosure of Information) [1993] Fam 231

Rodgers v Rodgers (1964) 114 CLR 608
Theodoropoulas v Theodoropoulas [1963] 2 All ER 772

[2008] FCWA 61

Introduction

1 The issue for determination is whether [Mr C], a psychotherapist who provided

marriage counselling sessions to the husband and wife, is obliged to comply with a subpoena filed by the Independent Children’s Lawyer on 5 November 2007 to produce “all medical records, memorandums, notes, files” relating to the husband and wife.

2 At a hearing on 12 December 2007, the Independent Children’s Lawyer

indicated that since the publication of the single expert’s report she no longer requires access to the psychotherapist’s file and is prepared for the subpoena to lapse. The husband seeks that the materials be produced pursuant to the subpoena, and says he consents to the psychotherapist making his file available. Counsel for the wife was unable to indicate at the hearing whether the wife consented to the psychotherapist making his file available. Notwithstanding any consent of the parties, the psychotherapist objects to disclosing his notes.

Brief background

3 The parties commenced a relationship when the wife was living in the United

States of America and the husband was living in Australia. The wife moved to Australia in March 2005 and the parties married on 25 March 2005. There is one child of the marriage, [R] born [in] September 2005. The wife also has a child from a previous marriage, [M] who is 14 years old.

4 The marriage was a troubled one and, in March 2006, the wife took out

a violence restraining order against the husband. The husband and wife agreed to attend counselling and discuss reconciliation. In May and June 2006, the husband and wife attended upon [Mr C] on four occasions. The husband and wife resumed living together in the latter half of 2006 and were still residing under the same roof when the husband instituted court proceedings in August 2007, seeking orders relating to both financial and children’s issues. The wife opposes the orders sought by the husband and seeks permission to relocate to [Europe] with the parties’ child.

5 Since the commencement of the proceedings, the wife in breach of orders of this

Court failed to return [R] to Australia following a trip to [Europe] and the husband is seeking to return the child to Australia. The wife is no longer represented by solicitors in Australia and no written submissions were filed on her behalf in relation to the psychotherapist complying with the subpoena.

Observations

6 The counselling sessions which relate to my determination post date the

amendments made by the Family Law Amendment (Shared Parental Responsibility) Act 2006 (“the amending Act”) to the provisions of the Family Law Act 1975 (“the Act”) which deal with the confidentiality of counselling. The relevant provisions of the amending Act came into operation on 22 May 2006. The husband concedes in his written submissions filed on 6 March 2008 that [Mr C]’s notes of the parties’ marriage

[2008] FCWA 61

counselling prior to 23 May 2006 are confidential. The husband says at paragraph 3 of
his written submissions filed on 6 March 2008:

“[Mr C] has deposed in an Affidavit sworn 11th December 2007 that he swore an oath made under the Family Law Act 1975 Section 18 as it then was and correctly claims that any records generated by work undertaken prior to 23rd May 2006 are rendered inadmissible by virtue of the oath

sworn by him and following from that by virtue of the operation of Section
19N (as it operated prior to its repeal on 23 May 2006).”

7 Therefore for the purposes of this determination it is only necessary for me to consider the materials from [Mr C]’s file which relate to consultations after the 2006 amendments to the Act came into operation. The husband says in his affidavit filed on 6 March 2008 he believes the parties had consultations with [Mr C] on 25 May 2006, 30 May 2006, 7 June 2006 and 20 June 2006.

[Mr C]’s position

8 [Mr C] says he specialises in couples therapy which was formerly known as

marriage counselling. He describes his work and the importance of confidentiality in
his affidavit provided to the Court on 12 December 2007 as follows:

“Couple therapy is a process aimed at helping couples who are experiencing difficulties in their relationship to work through those difficulties to a point where they can experience a better quality in their marriage or de facto relationship. Couple therapy is essentially a preventative and therapeutic service.

The essence of the process of couple therapy involves inviting the 2 partners to regard their therapy session as a “safe place” in which they can speak openly and honestly about both the facts of their relationship and about their subjective and emotional experience in the relationship. In couple therapy an assurance of confidentiality is vital if the therapy is to be experienced as a safe place in which the 2 partners can be vulnerable and take the emotional risks necessary to openly and honestly explore their difficulties with each other.”

9 In his written submissions [Mr C]:

• acknowledges that he is not a “family counsellor” as now defined by s 10C of the Act. At paragraphs 12 to 13 of the submissions he says:

“The transition provisions in the amending Act do not deem a family and child counsellor to be a family counsellor within the meaning of s 10C.

No Accreditation Rules for family counsellors pursuant to s 10C(1)(a) have been gazetted. [Mr C] is not employed by an accredited organisation. [Mr C] therefore cannot be a family counsellor within the meaning of the Act (following the 2006

[2008] FCWA 61

amendments) and therefore, the confidentiality provisions of s 10D do not prohibit him from producing the documents sought pursuant to the subpoena.”

• submits that a significant policy issue arises as a consequence of the 2006 amendments as there are now effectively two classes of family counsellors, being those provided by authorised organisations which remain confidential pursuant to s 10D, and counselling provided by private individuals, who cannot be accredited under the Regulations and are therefore not protected by s 10D;

• submits it is not in the public interest that if he provides counselling as an employee of an approved organisation he would not be compelled to produce the subpoenaed material whereas if he is acting as a private counsellor the client’s confidentiality does not receive the same protection;

• submits at paragraph 20 of his submissions:

“In light of the Act’s emphasis and encouragement of family counselling and family dispute resolution, it is submitted that to treat one kind of family counselling differently from another, by compelling production of records, has the capacity to undermine the therapeutic benefit and public confidence in the process.”

The husband’s position

10 The husband is seeking that the material be disclosed because it is evidence

relevant to the considerations to be taken into account when determining what is in the child’s best interests. The husband further asserts that because the wife has alleged family violence on his part, the psychotherapist’s notes may assist the Court in testing the wife’s credibility.

11 In relation to the nature of the counselling which took place with [Mr C], the husband says in his affidavit sworn on 29 February 2008:

“At counselling we discussed, amongst other things, the nature of our relationship, what we thought our problems were and what we thought we could do to fix them. We also discussed parenting of the child [M] and to a lesser extent parenting of the child [R].

We were conflicted about how primarily best to discipline [M] and our problems were our different characters and approaches and how to mould those two differing approaches into one.

I do not mind if the records are produced to Court and I understood from [the wife] when she was still in Australia and hadn’t remained in [Europe] contrary to Court Orders, that she did not mind whether the documents were produced either.”

[2008] FCWA 61

12 The husband submits:

• [Mr C] does not come within the definition of “family counsellor” under s 10C of the Act and accordingly he is not entitled to rely on confidentiality afforded by the current provisions of the Act notwithstanding he would have been entitled under the previous provisions of the Act;

• given that [Mr C] is not a family counsellor pursuant to s 10C the admissibility of the evidence obtained at the parties’ attendances upon [Mr C] is governed by s 10E;

• that the Court should reject [Mr C]’s assertion that an anomaly exists in that he would be protected by the Act if he is employed as a counsellor by an approved organisation but not if he consults privately. He says at paragraph 10 of his written submissions:

“This is a matter whereby Parliament has provided that there are no Accreditation Rules for private therapists. Whether there is an anomaly or not with respect to whether [Mr C] is a private therapist or an employee of an approved organization, it is not the role of the Court to interpret the Law in a manner which is inconsistent with the Law”;

• the husband says at paragraph 13 of his written submissions:

“It is clear that a case such as this one could set a dangerous precedent in terms of the fact that other therapists may avail themselves of the protection of such a precedent when the Law clearly provides that private therapists may not avail themselves of the immunity from admissibility that is provided in the provisions in the Act that commenced on the 23rd May 2006.”

Admissibility under the Family Law Act 1975

13 I do not accept the husband’s submission that the admissibility of [Mr C]’s notes

is now governed by s 10E of the Act. Division 2 of Part II of the Act which contains s 10B to 10E, relates entirely to family counselling as now defined by the Act. In my opinion given that [Mr C] is not a family counsellor for the purposes of s 10C the admissibility of his notes is not governed by s 10E.

14 It is clear from the revised Explanatory Memorandum to the amending Act that s 10E was intended to replace s 19N. It states at paragraphs 125 to 126:

“Currently, the admissibility into evidence of communications and admissions made in family and child counselling and family and child mediation, or in a professional consultation pursuant to a referral by a family and child counsellor or family and child mediator, is addressed by s 19N of the Act.

Section 10E largely recreated s 19N, to the extent that that section relates to family counsellors. Subsection 10E(1) provides that a communication

[2008] FCWA 61

made in family counselling is not admissible in any court or proceedings,
in any jurisdiction.”

15 [Mr C] acknowledges he is not a family counsellor as now defined in the Act.

The specific reference to marriage counselling has been removed from the definition of family counselling which is now focused on a system of accreditation and authorisation. It appears that this was done to ensure parties are provided with quality counselling. As stated at paragraph 38 of the revised Explanatory Memorandum to the amending Act, the amendments to the counselling and dispute resolution provisions in the Act “support the Government’s policy of ensuring that separating and divorcing parents have access to quality counselling and dispute resolution services without the need to go to court”. Notwithstanding this variation, the amending Act continues to recognise the importance of confidentiality of communications in family counselling as provided by the Act. Paragraphs 113 to 115 of the revised Explanatory Memorandum state:

“Currently s 19 of the Act requires family and child counsellors to make on oath or affirmation of secrecy. The form of this oath or affirmation is set out at regulation 58 of the Family Law Regulations 1984. This section combines these existing provisions to simplify the Act and, by moving the terms of the oath or affirmation into the primary legislation, emphasises the importance of confidentiality.

New s 10D aims to clarify when communications made in family counselling must or may be disclosed.

Recognising the importance of confidentiality to the success of family counselling, subsection 10D(1) provides that a family counsellor must not disclose a communication made in family counselling unless the disclosure is required or authorised under the section.”

16 Given that parliament has introduced a system of accreditation and authorisation

of family counsellors and [Mr C] is not a family counsellor under the Act as now amended, the counselling he provided to the parties does not attract confidentiality under the Act.

Common law privilege

17 Where a marriage counsellor or mediator cannot avail themselves of privileges

granted under the Family Law Act 1975, it is necessary for the Court to consider the
application of the common law principles: Lace and Lace (1981) FLC 91-080.

18 There is a substantial line of authority providing that statements made by the

husband and the wife during marriage counselling are privileged: McTaggart v McTaggart [1948] 2 All ER 754; Mole v Mole [1950] 2 All ER 328; Henley v Henley [1955] 1 All ER 590; Theodoropoulas v Theodoropoulas [1963] 2 All ER 772; Rodgers v Rodgers (1964) 114 CLR 608 at 614; Constable v Constable and Johnson [1965] ALR 938; Pais v Pais [1970] 3 All ER 491; Lace and Lace (supra); Re D (Minors) (Conciliation: Disclosure of Information) [1993] Fam 231; M and M [2002] FamCA 493.

[2008] FCWA 61

19 The privilege extends beyond counselling held for the purpose of resolving

a legal dispute to counselling held for the purpose of promoting the reconciliation of
a husband and wife. In Mole v Mole (supra), Bucknill LJ said:

“[I]n matrimonial disputes, the State is also an interested party and is more interested in reconciliation than in divorce, and if the rule as to privilege tends to promote the prospects of reconciliation, I think it ought to be applied …”

20 Denning LJ said:

“I take it that the principle of McTaggart v. McTaggart applies not only to probation officers, but also to other persons such as clergy, doctors, or marriage guidance counsellors, to whom the parties resort with a view to reconciliation when there is a tacit understanding that the conversations are without prejudice.”

21 The privilege, if applicable, would be such that this Court would not compel

a psychotherapist to give evidence of the statements made to him or her by the husband and the wife during couples therapy. The privilege, however, is that of the husband and the wife and it may be waived by them. A marriage counsellor or other mediator cannot avail themselves of the privilege if both the husband and the wife consent to a marriage counsellor producing their notes pursuant to the subpoena Pais v Pais (supra). The consent of both parties was not however, given in this case.

22 Counsel for the husband submitted that the “without prejudice” privilege may

also be overridden by considerations pertaining to the best interests of the child. In
Hutchings and Clarke (1993) FLC 92-373, the Full Court said at 79,875-79,876:

“If the welfare of the child is the subject of the enquiry, there comes a point when it must override any privilege which either parent may possess, as was the case in The Queen v. Bell; Ex parte Lees (1980) 146 CLR 141.

…

As counsel submitted for the mother this is a case of competing public interests. The public interest in encouraging parties to settle their differences is an important one. … Hence, the court should be reluctant to override the privilege of parties engaged in such discussions, but as stated earlier, protection of the welfare of the child is another public interest recognised in … the Act and declared to be the paramount consideration … This means that the court must give priority to considerations of the welfare of the child in a situation where non-disclosure of the relevant evidence “might have the result that the child remained in conditions detrimental to his or her welfare” in the words of Gibbs J cited earlier. This balancing of interests can only be performed on a case by case basis and in most cases where negotiations cover details of custody and access issues such as times for access, mode of transportation and the like, the discussion should remain privileged.”

[2008] FCWA 61

23 In Hutchings and Clarke (supra), the Full Court held that disclosure of what was said during negotiations between parties could be required where a refusal to admit the evidence in question would “have a direct adverse affect on the welfare of the child”.

24 In the United Kingdom, a different test was applied so that conversations held

with a conciliator were privileged “save in the very unusual case where a statement is made clearly indicating that the maker has in the past caused or is likely in the future to cause serious harm to the well-being of a child”: Re D (Minors) (Conciliation: Disclosure of Information) (Supra, 241). In Australia, s 10E(2) denies the statutory protection afforded to communications during family counselling by s 10E(1) to “an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse”.

25 The High Court, since Hutchings and Clarke (supra) was decided, has given consideration to the application of the best interests principle to the pre-trial production of documents. In Northern Territory v GPAO (1999) 196 CLR 553, Gaudron J said at p 607:

“It is correct to say, as was contended for the first respondent, that the “paramountcy principle” permeates the whole of Pt VII of the Act. But, so far as concerns [s 60CA] of the Act, its significance is, in terms, confined to “deciding whether to make a particular parenting order”. It does not apply to the conduct of proceedings for the making of such an order or the procedures to be observed in relation to those proceedings. The question whether a person who is not a party to proceedings is or may be made subject to the court’s powers to compel the production of documents is, essentially, a question of procedure. And on that issue [s 60CA] of the Act has nothing to say.”

26 McHugh and Callinan JJ said at p 629:

“The “paramountcy principle” is a principle to be applied when the evidence is complete. Except where statute provides to the contrary, it is not an injunction to disregard the rules concerning the production or admissibility of evidence.”

27 Gleeson CJ and Gummow J expressed similar views at pp 585-586. Kirby J dissented on this issue at pp 638-643.

Conclusions

28 The common law privilege attaching to conversations during marriage

counselling is not absolute and is subject to exceptions, including those circumstances identified in Re D (Minors) (Conciliation: Disclosure of Information) (supra) and those set out in s 10E(2)(a).

29 In the particular circumstances of this case, however, I do not consider the

psychotherapist’s notes would come within any exception to the privilege attaching to
conversations during marriage counselling, for the following reasons:

[2008] FCWA 61

• the Independent Children’s Lawyer does not seek to enforce compliance with the subpoena;

• the husband has not identified any specific issue, other than family violence allegedly directed towards the wife, of circumstances having a direct adverse effect on the child’s welfare for which production of the psychotherapist’s notes may be relevant;

• the husband does not suggest that, during the couples therapy, an admission was made by an adult that indicated that the child had been abused or was at risk of abuse;

• the nature of the discussions did not focus on issues directly relating to the child;

• the husband appears to seek the psychotherapist’s notes mainly as a means of testing the wife’s credibility or the veracity of her allegations against him; and

• the psychotherapist’s notes would in all likelihood be of very limited evidentiary value in these proceedings.

Proposed order

1. The Form 14 Subpoena filed on 5 November 2007 directed to [Mr C] be set aside.

I certify that the preceding [29] paragraphs are a true copy of the reasons for

judgment delivered by this Honourable Court

Associate