Pedersen & Pedersen
[2024] FedCFamC1A 229
•10 December 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1) APPELLATE JURISDICTION
Pedersen & Pedersen [2024] FedCFamC1A 229
Appeal from: Pedersen & Pedersen (Subpoena Objection) [2024] FCWA 212 Appeal number: NAA 239 of 2024 File number: PTW 5234 of 2019 Judgment of: AUSTIN, O'BRIEN, JARRETT JJ Date of judgment: 10 December 2024 Catchwords: FAMILY LAW – APPEAL – LEAVE TO APPEAL – Where the primary judge dismissed the applicant’s objection to the production and inspection of documents produced under subpoena from the child’s therapist – Where previous orders were made for the child to engage in “non-reportable” therapy –Where the basis of the objection was said to be confidentiality – Where the Independent Children’s Lawyer supports the application – Consideration of legal principles applying to objections to subpoena – Where the objections were misconceived – Application for leave to appeal dismissed – No order as to costs. Legislation: Evidence Act 1995 (Cth) Pt 3.10, Div 4
Family Law Act 1975 (Cth) Pt VII, ss 10B, 10C, 10D, 10E, 60CA, 64B, 65AA, 69ZX
Evidence Act 1906 (WA), ss 20A, 20B, 20C, 20D, 20E, 20F
Family Court Rules 2021 (WA) rr 256, 257, 258
Cases cited: Allesch v Maunz (2000) 203 CLR 172; [2000] HCA 40
Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350; [1998] WASCA 127
AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615; [2023] HCA 26
Breen v Williams (1996) 186 CLR 71; [1996] HCA 57
CDJ v VAJ (1998) 197 CLR 172; [1998] HCA 67
Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434; [1987] FCA 266
DL v The Queen (2018) 266 CLR 1; [2018] HCA 26
Dupont v Chief Commissioner of Police & Anor (2015) FLC 93-648; [2015] FamCAFC 64
Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; [1999] HCA 67
GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635; [2023] HCA 32
Grant v Downs (1976) 135 CLR 674; [1976] HCA 63
Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290
Harris v Caladine (1991) 172 CLR 84; [1991] HCA 9
Jess & Jess (No 5) (2024) FLC 94-190; [2024] FedCFamC1A 85
Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Mann v Carnell (1999) 201 CLR 1; [1999] HCA 66
Medlow & Medlow (2016) FLC 93-692; [2016] FamCAFC 34
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541; [2018] HCA 30
Mobil Oil Australia Ltd v Guina Developments Pty Ltd (1996) 33 IPR 82; [1996] 2 VR 34
Morgan v Morgan [1977] 2 WLR 712
National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Norbis v Norbis (1986) 161 CLR 513; [1986] HCA 17
Northern Territory v GPAO [1999] 196 CLR 553; [1999] HCA 8
O’Brien v Komesaroff (1982) 150 CLR 310; [1982] HCA 33
Pettitt v Dunkley [1971] 1 NSWLR 376
Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184; [1998] HCA 44
Sadek v Hall (2015) 53 Fam LR 187; [2015] FamCAFC 23
The Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39; [1980] HCA 44
Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9
Wong v Sklavos (2014) 319 ALR 378; [2014] FCAFC 120
Worrall & Bartley [2023] FCWA 2
Number of paragraphs: 80 Date of hearing: 27 November 2024 Place: Perth Counsel for the Applicant: Mr Hooper SC Solicitor for the Applicant: Kerr Fels Divorce & Family Lawyers Counsel for the Respondent: Mr Spashett Solicitor for the Respondent: Legal Aid WA Counsel for the Independent Children's Lawyer: Ms Mohan Solicitor for the Independent Children's Lawyer: RM Law Pty Ltd ORDERS
NAA 239 of 2024
PTW 5234 of 2019FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTIONBETWEEN: MR PEDERSEN
Applicant
AND: MS PEDERSEN
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
AUSTIN, O'BRIEN, JARRETT JJ
DATE OF ORDER:
10 DECEMBER 2024
THE COURT ORDERS THAT:
1.Leave to appeal is refused.
2.The Amended Notice of Appeal filed 29 October 2024 is dismissed.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pederson & Pedersen has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
AUSTIN J:
This is an application for leave to appeal from some interlocutory procedural orders made by a judge of the Family Court of Western Australia on 13 September 2024 in parenting proceedings contested between the applicant father and the respondent mother under Pt VII of the Family Law Act 1975 (Cth) (“the Act”). An Independent Children’s Lawyer (“ICL”) represents the interests of the parties’ child in the proceedings.
The “judgment” which the father wishes to challenge (with the ICL’s support) comprises five separate orders collectively dismissing two objections to a subpoena issued by the mother to the child’s therapist requiring her to produce to the Court all documents related to the child’s therapy and, additionally, dictating how those documents are handled upon their production.
The primary judge granted permission for the lawyers to inspect the documents produced by the therapist in answer to the subpoena (Order 4), restrained the reproduction of any document then inspected (Order 5), restrained the parties from inspecting the documents (Order 6), restrained the parties from informing the child about the Court’s decision in respect of the subpoena (Order 7), and otherwise dismissed the two subpoena objections (Order 8). Those are the orders the subject of the application for leave to appeal.
The subpoena objections were correctly dismissed, though the reasons given for the decision were erroneous. While appeals only lie from judgments and not from explanatory reasons (AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 411 ALR 615 at [34]), some of the ancillary orders constituting the judgment need correction. Such correction cannot be achieved unless leave to appeal is granted and the appeal allowed, as appellate remedial power may only be exercised if appealable error is shown (Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541 at [30]–[31]; Allesch v Maunz (2000) 203 CLR 172 at 179–181 and 187; CDJ v VAJ (1998) 197 CLR 172 at 201–202 and 233–234).
Rather than dealing sequentially with the proposed grounds of appeal, it is simpler and clearer to address the orders made by the primary judge.
Order 8
By Order 8, the two subpoena objections filed by the father and the therapist were dismissed.
The first error made by the primary judge was by conceptualising the decision in respect of the objections to the production of documents as being discretionary (at [27] and [35]).
The objections were to the therapist’s production of the documents to the Court and hence to the competence of the subpoena, not merely to the inspection of the documents once produced. The nature of the objections was important because it characterised the type of decision then required of the primary judge. Determination of the objections to the production of documents on the premise of the confidentiality of the documents, as was asserted by the father and the therapist, was an evaluative decision, not a discretionary decision (Esso Australia Resources Ltd v Commissioner of Taxation (1999) 201 CLR 49; Grant v Downs (1976) 135 CLR 674). The subpoena objections were either valid or not. There was and is only one correct answer. As elaborated below, the subpoena was competent and the objections were unfounded.
Once determined a subpoena is competent and enforceable, it is only the subsequent decision about the parties’ access to the produced documents for inspection and reproduction that is discretionary in nature (National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 385). That aspect of the decision made by the primary judge was reflected in Orders 4–7 and will be addressed later.
In this appellate proceeding, the father submitted the distinction between evaluative and discretionary decisions is a “distinction without a difference”, but that is not so. The distinction importantly dictates the approach taken to the decision at first instance and governs the parameters of the grounds of appeal which lie from the decision (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore (2023) 414 ALR 635 at [16] and [26]; Norbis v Norbis (1986) 161 CLR 513 at 518; Warren v Coombes (1979) 142 CLR 531). Complaints of discretionary error, as were mostly contended by the father and the ICL in this appellate proceeding, have no place in an appeal from an evaluative decision.
The second error made by the primary judge, which flows from the first, was by presuming, as the parties argued, that the child’s best interests were a salient consideration in determining the dispute over the production of documents under the subpoena (at [16], [30] and [36]). That was incorrect. The paramountcy principle found within Pt VII of the Act (s 60CA and s 65AA) only applies once the evidence at trial is closed and then governs the ultimate decision about the nature of the parenting orders needed to finalise the cause. The paramountcy principle has no bearing upon anterior decisions about the production of documents in answer to a subpoena or the admissibility of evidence at trial (Northern Territory of Australia v GPAO (1999) 196 CLR 553 at 584–586, 607 and 629).
The third error made by the primary judge was by accepting the decision in respect of the subpoena objections was covered by certain provisions of the Evidence Act 1906 (WA) (“the Evidence Act”). Her Honour referred to those provisions which define a “protected confidence” and regulate how such “confidences” are “protected” when any dispute arises as to the admissibility of any evidence of such confidences at trial (s 20A to s 20F of the Evidence Act). The Evidence Act did not apply.
The Evidence Act only regulates the admissibility of evidence – not the determination of anterior interlocutory disputes over the production of documents to the Court under subpoena. No provisions exist within the Evidence Act to extend the operation of the privileges which affect the admissibility of evidence at trial to additionally cover pre-trial disputes in relation to documents sought to be procured by subpoena. Disputes over the production of documents under subpoena are instead covered by the common law (Mann v Carnell (1999) 201 CLR 1 at 9–12, 17 and 45–46; Esso Australia Resources Ltd v Commissioner of Taxation at 55, 59, 73 and 100–101; Northern Territory of Australia v GPAO at 571, 586, 606 and 629; Dupont v Chief Commissioner of Police & Anor (2015) FLC 93-648 at [22]–[42]).
The situation may be different in other contexts. For example, in federal proceedings to which the Evidence Act 1995 (Cth) applies, journalist privilege is extended for the purpose of covering pre-trial disputes over the privilege (Pt 3.10, Div 4 of the Evidence Act 1995 (Cth)), meaning the common law is displaced in such situations.
Against the background of legal principles being misapplied, Order 8 would ordinarily surely be impeached. However, the two subpoena objections were argued on an entirely misconceived premise. Before the primary judge, the father and the therapist objected to the production of the therapy records solely because they were supposedly confidential. They asserted any breach of such confidentiality was liable to cause the child emotional harm once she learned of it, so the revelation of the documents would be contrary to the child’s best interests, in which event the documents should be suppressed. In this appellate proceeding, the father and the ICL essentially contended the subpoena objections were wrongly dismissed because her Honour failed to properly heed that concern. That grievance lay beneath each ground of appeal.
The usual confidentiality of a person’s medical records is accepted (Breen v Williams (1996) 186 CLR 71), but such equitable confidentiality does not conclusively put the medical records beyond the reach of a subpoena if the records are apparently relevant to a litigious dispute. Here, it was not contended the confidentiality of the child’s therapy records arose from some equitable right to privacy, but rather because the parties originally agreed to submit the child to “non-reportable” therapy and so the disclosure of the records would now unjustifiably repudiate the therapeutic condition of privacy. This contention was flawed for several reasons.
First, even though the original therapy order made in January 2021 was consensual, it is doubtful any source of power existed for the Court to dictate how the therapeutic counselling to which the child submitted must be “non-reportable” (Order 15.1 made on 25 January 2021). Parties to litigation cannot consensually confer power upon a court to make an order it lacks power to make (Harris v Caladine (1991) 172 CLR 84 at 133).
The order could not have been an order for “family counselling” (s 10B) because the therapist was not a “family counsellor” (s 10C) and so the confidentiality of such counselling was not governed by other provisions of the Act (s 10D and s 10E). Even if the therapy order could be construed as a parenting order made for the child’s welfare (s 64B(2)(i)), it is doubtful any implied power existed for the Court to impose an enforceable condition of confidentiality which impinged the parties’ litigious procedural rights.
If no power existed for the Court to impose an enforceable condition that the child’s therapy must be “non-reportable”, the confidential status of the documents depended exclusively upon the parties’ willingness to continue adhering to the condition. The mother recanted, so there was no basis to assert the confidentiality of the therapy records remained intact.
Secondly, even if there was an originally valid premise to assert the confidentiality of the therapy records, such confidentiality was voluntarily surrendered by the parties. Only three months after the first order was made in January 2021, the parties agreed to another order being made compelling them to procure written reports from the therapist, offering her opinions about the child’s progress in therapy and how the child’s needs were best addressed in the litigation (Orders 1–4 made on 27 April 2021). Necessarily, the child’s therapy was then no longer “non-reportable”. It was a contradiction in terms to suggest otherwise.
Since that time, the therapist has prepared six reports (at [28]) and all have been disseminated amongst the parties, the ICL, and the single expert witness appointed in the proceedings. We were informed in this appellate proceeding that it is uniformly intended the therapist’s reports will be adduced in evidence at the trial and the therapist will be amenable to cross-examination. The primary judge said the therapist’s reports were already in evidence (at [2] and [28]), but that observation needs qualification. Although the reports may have been tendered in evidence during some earlier interlocutory hearing, they are not exhibits in the final trial of the proceedings, which is now six months hence.
Thirdly, even if the parties’ conduct since April 2021 did not manifest their waiver of the confidentiality of the therapy records, the claim of confidentiality perpetuated by the father and the ICL is just a bare refrain of their expectation as to how the retention of privacy in the records advances the child’s best interests.
Speaking generally, any resistance by an objecting party to the force of a subpoena compelling the production of records to a Court on grounds of confidentiality requires the party to demonstrate such confidentiality rests on an established class of privilege – such as client legal privilege, the privilege against self-incrimination, public interest immunity and the like. The mere desire for the retention of confidentiality in documents is to be distinguished from the enjoyment of a right to the retention of confidentiality, as the latter flows from the operation of some type of privilege or contractual condition (Jess & Jess (No 5) (2024) FLC 94-190 at [37]; O’Brien v Komesaroff (1982) 150 CLR 310 at 326–328; The Commonwealth v John Fairfax and Sons Ltd (1980) 147 CLR 39 at 50–51; Mobil Oil Australia Ltd v Guina Developments Pty Ltd (1996) 33 IPR 82 at 87; Corrs Pavey Whiting & Byrne v Collector of Customs (Vic) (1987) 14 FCR 434 at 443).
There is some scant authority for the proposition that a party might be relieved of the obligation to comply with a subpoena on account of a mere desire for privacy (Wong v Sklavos (2014) 319 ALR 378 at [30]–[34]; Apache Northwest Pty Ltd v Western Power Corporation (1998) 19 WAR 350 at 380–381; Morgan v Morgan [1977] 2 WLR 712), but it would evidently be a rare exception to the general rule. Given the way in which the privacy of the child’s therapy and associated records has already been ruptured, this rare exception could hardly be invoked here.
The subpoena objections therefore lacked any valid foundation. Even if correct legal principles had been or are again applied to determine the subpoena objections, their dismissal is an inevitable outcome. It would therefore be futile to disturb Order 8.
Orders 4 and 6
Given the dismissal of the objections to the production of the documents, there remained the question of access to the documents. In conjunction, Orders 4 and 6 allow the lawyers, but not the litigants, to inspect the therapy records produced in answer to the subpoena.
True enough, these orders were not the subject of discrete complaint by the father or the ICL, but this Court must be astute to correct legal error (Warren v Coombes at 552–553), especially when the evidence was wholly documentary and the primary judge enjoyed no first-instance advantage over this Court (GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore at [27]–[28]).
The orders are unspecific about the ICL’s entitlements, but presumably they allow the ICL to inspect the documents because she falls within the description of “solicitors and/or counsel”, which class of lawyers is entitled to inspect the documents (Order 4). The parties to the proceedings are restrained from inspecting the documents (Order 6), but ICLs are not actually “parties” to proceedings under Pt VII of the Act (Re JJT; Ex parte Victoria Legal Aid (1998) 195 CLR 184 at 207 and 225–226).
To guard against any abuse of its process, the Court does have implied power to confine the inspection of documents produced in answer to subpoenas to lawyers only (Northern Territory of Australia v GPAO at [240]; Sadek v Hall (2015) 53 Fam LR 187 at [47]). However, such power would only be exercised in unusual circumstances and subject to the provision of a clear explanation as to necessity. For example, the inspection of documents by one party might reveal the formerly undisclosed home address of the other party, thereby compromising his or her safety. In another form of civil proceeding, the litigants might be business competitors and the inspection of one party’s documents by the other might betray a trade secret.
The only explanation given by the primary judge for Orders 4 and 6 was this:
38.Although somewhat superficial, for the Reasons raised by me during the hearing about the utility in making such a restraint, namely, where the documents are likely to be discussed in detail during the trial, thus letting the cat out of the bag, so to speak, I intend to put in place a restraint limiting inspection only to solicitors and counsel, pending conferral and the determination of any further objection.
39.All of the counsel involved in the trial are experienced, and if, after having inspected [the therapist’s] file, and this is particularly for the mother's counsel, he reaches a forensic view that it is not likely to advance the mother's case, I would hope the position about how [the therapist’s] file will be dealt with at the trial can be reviewed prior to her coming to give evidence.
Evidently, the primary judge thought the lawyers might be able to inspect the documents and then agree upon a course of conduct which averts further conflict, but that was an inadequate reason for the orders.
The underlying cause of action is contested between the parties, not the lawyers, whom are merely advisers to and representatives of the parties. The lawyers conduct the proceedings consistently with their multiple ethical duties owed to the Court, to one another, and to their clients upon the receipt of informed instructions from their clients. Orders 4 and 6 tend to thwart the task because they impair the lawyers’ ability to obtain informed instructions from their clients as to how they would want the trial conducted in view of the contents of the therapy documents. The lawyers will have read the documents, but the parties will not have. Neither the lawyers nor the litigants should be constrained in that way without good reason.
Moreover, the orders do not cater for one or both parties losing their legal representation for one reason or another. If that occurs, the unrepresented party would then be ignorant of the contents of the documents and thereby at disadvantage.
The primary judge’s hope that the lawyers (or the parties) will subsequently resolve the dispute falls well short of any reasonable expectation and, if no such resolution does ensue, the same arguments ventilated before the primary judge and in this appellate proceeding will need to be re-visited in another interlocutory dispute. That potentiality could be averted by the present discharge of the orders. It falls within the realms of a “substantial injustice” (Medlow & Medlow (2016) FLC 93-692 at [44]–[57]) for the parties to be sent away knowing part of their dispute has not been quelled and could well arise again.
Even though Orders 4 and 6 might enjoy a technical legal premise, the reasons given for them are inadequate and so they should be discharged for that reason. The lack of sufficient reasons is a legal error (DL v The Queen (2018) 266 CLR 1 at [131]; Pettitt v Dunkley [1971] 1 NSWLR 376 at 382). The error justifies the grant of leave to appeal and allowance of the appeal so those orders can be set aside.
Disposition
It is unnecessary to say anything about Orders 5 and 7, other than that such injunctions were discretionary decisions open to the primary judge. None of the grounds of appeal were directed towards these orders.
Leave to appeal should be granted and the appeal allowed. Orders 4 and 6 should be set aside.
No costs order was sought.
O’BRIEN & JARRETT JJ
This is an application for leave to appeal from interlocutory orders made by a judge of the Family Court of Western Australia on 13 September 2024. The orders were made in the context of contested parenting proceedings between the applicant father and the respondent mother under Part VII of the Act. An Independent Children’s Lawyer (“ICL”) represents the interests of the 15-year-old child who is the subject of the proceedings. The ICL supports the application.
The child has for some time engaged in what was initially characterised as “non-reportable” therapy with a psychologist (whom for convenience in these reasons we shall refer to as “the therapist”). The respondent issued a subpoena directed to the therapist requiring the production of her entire file. Both the therapist and the applicant objected to the production of documents, and the applicant to inspection of such documents pursuant to the subpoena. The primary orders which the applicant seeks to challenge dismissed those objections, and imposed conditions as to the inspection of the documents once produced.
Leave to appeal will only be granted where the decision of the primary judge was “attended with sufficient doubt” to warrant its reconsideration and a “substantial injustice” would ensue if leave were refused (Medlow & Medlow).
For the reasons that follow, the application for leave to appeal will be dismissed.
THE RELEVANT BACKGROUND
Consent orders were made by a Family Law Magistrate on 25 January 2021 for the parties to do all things necessary to arrange for the child to attend on one of four nominated mental health professionals (of whom the therapist was one) “for the purposes of non-reportable therapeutic counselling” (Minutes of Interim Consent Orders dated 25 January 2021, Order 1). The source of power for the making of that order was not identified by the parties or by the Family Law Magistrate, but nothing turns on that for present purposes. It is not suggested that the therapist was at the relevant time a family counsellor as defined in s 10C of the Act, such as to trigger the confidentiality provisions of s 10D.
No orders were made, whether pursuant to s 69ZX of the Act or otherwise, to define or secure the asserted non-reportable nature of the counselling by prohibiting evidence being given by the therapist, or the production of documents being sought.
The initial premise as to the nature of the counselling was promptly abandoned by the parties and by the ICL. Only three months after the original order, further orders were made by consent requiring the parties to request a written report from the therapist as to the child’s progress in counselling, how the existing parenting and hand over arrangements were “working” for the child, and other matters considered relevant (Orders dated 27 April 2021, Order 2). The orders made it clear that it was open to the therapist to decline to provide the report.
The therapist provided a report in response to that request. Since then, she has responded to detailed questions put by the respondent’s lawyer in relation to her initial report and produced four further reports. Those reports have extended far beyond mere recounting of the progress of the child’s counselling. They have extended, including at the request of the ICL, to the expression of opinions in detailed terms as to the prospective parenting arrangements which the therapist considers to be in the best interests of the child. They conveyed in detail the therapist’s observations and impressions of the parties. At the hearing before us, senior counsel for the applicant appropriately conceded that the therapist had “left behind the ring-fenced role as the child’s therapist and entered the arena at a very early stage”.
By the process just briefly outlined, and at the mutual instigation of the parties and the ICL, any pretext that the child’s confidences were to be preserved by the therapist was dispelled. The therapist was a willing, and later seemingly enthusiastic, participant in that process.
It was common ground that the reports of the therapist would be adduced in evidence at trial, and that she would voluntarily attend trial to give evidence and be cross examined.
Nevertheless, the applicant objected both to the production and inspection of the documents sought under the subpoena. The articulated grounds of objection referred to the original order for “non-reportable” counselling and asserted that the child had a “continuing relationship of confidence and trust” with the therapist, that the continuation of that therapeutic relationship was of importance for the child, and that both the production and inspection of the documents would be contrary to the continuation of that relationship (applicant’s Notice of Objection filed 4 September 2024, p.1).
The therapist objected to the production of the documents sought under the subpoena. She did not raise any separate objection to inspection. In a letter accompanying her objection, she too referred to the original agreement that therapy would be “non-reportable” (Notice of Objection filed 5 September 2024, p.2). She asserted that the child had been assured that the specific content of their sessions was confidential unless agreed otherwise. She expressed concern that if the file was produced and inspected the therapeutic relationship would be irreversibly damaged, and the child would be reluctant to engage with another therapist. She otherwise expressed the view that her multiple “in-depth reports” covered the “pertinent issues relevant to the court currently” (Notice of Objection filed 5 September 2024, p.3).
THE HEARING AND PRIMARY JUDGMENT
At the hearing before the primary judge, the parties and the ICL drew no distinction between the objection to the production of documents, and the objection to their inspection. Rather, argument was presented on the misconceived basis that the objections in full were to be determined by the exercise of discretion, and inferentially with the best interests of the child as the paramount consideration.
That common approach was fundamentally wrong.
The determination of an objection to the production of documents is an evaluative decision. It does not involve the exercise of discretion. Rather, it involves the evaluation of objections grounded, most usually, in the common law. Typically, those objections may assert the absence of a legitimate forensic purpose, fishing, oppression or privilege. Either a particular species of privilege from production is established, or it is not.
In contrast, a determination about the parties’ access to the produced documents, and any conditions as to inspection or copying, gives rise to the exercise of a discretion (National Employers Mutual General Association Ltd v Waind and Hill at 385). The relevant provisions of the Family Court Rules 2021 (WA) (particularly rr 256–258) simply reflect that established position. The court may fashion orders appropriate to the circumstances before it, including by limiting access to documents or restricting their copying (Northern Territory v GPAO at [72].
In the exercise of that discretion, and contrary to the approach seemingly taken by the parties and the ICL at the hearing before the primary judge, the court is not required by s 60CA to regard the best interests of the child as the paramount consideration. That requirement applies only to a decision whether to make a particular parenting order, as defined in s 64B. The best interests of the child may clearly be considered in the exercise of discretion as to access to produced documents, but they are not mandated as paramount.
For reasons delivered extemporaneously, the primary judge dismissed the objections of both the applicant and the therapist. In doing so, and in common with the approach adopted by the parties, her Honour did not differentiate between the objections to production and the applicant’s objection to inspection. Rather, her Honour engaged with the submissions before her, before concluding, albeit with “significant reservation” (Reasons for Decision, [34]), that the inspection of the subpoenaed documents was forensically desirable, including to ensure that the opinion evidence of both the therapist and the appointed single expert witness in the case could be appropriately tested at trial.
Her Honour considered ss 20A to 20F of the Evidence Act 1906 (WA). With respect, we consider that it was unnecessary for her Honour to do so. Those provisions by their terms deal with the admissibility of evidence of what are defined as protected confidences. Whilst some past decisions of Western Australian courts have pondered how those provisions might desirably be applied to the production of documents under subpoena, they have done so without determining the question (Hancock Prospecting Pty Ltd v Hancock [2013] WASC 290 at [102] –[105]; Worrall & Bartley [2023] FCWA 2 at [228]–[229]). The question was not the subject of submissions before us, but in a different context the High Court has made it clear that the determination of objections to subpoenas to produce documents is unaffected by the Evidence Act 1995 (Cth) (Northern Territory v GPAO [1999] 196 CLR 553).
The objections of the applicant and the therapist were dismissed (Order 8). Permission was granted for the lawyers to inspect the documents produced by the therapist under the subpoena (Order 4), and the parties were restrained from themselves inspecting the documents (Order 6). The lawyers were restrained from reproducing the documents (Order 5) and the parties were restrained from informing the child about the Court’s decision (Order 7).
THE GROUNDS OF APPEAL
By his Amended Notice of Appeal, the applicant advanced six grounds of appeal. Sensibly, the first two of those grounds were abandoned at the hearing before us.
The remaining grounds of appeal are confusingly drafted. Distilled, they assert error on the part of the primary judge in the exercise of discretion, and by implication a failure to regard the child’s best interests as paramount in that consideration (Grounds 3 and 5), an error in concluding that the subpoena served a legitimate forensic purpose (Ground 4) and an abuse of process on the part of the respondent by seeking the issue of the subpoena for an ulterior purpose of ceasing the child’s engagement with the therapist (Ground 6).
Those grounds are primarily directed to the central complaint raised in the present application – the challenge to Order 8, by which the objections were dismissed.
During the course of submissions, senior counsel for the applicant made it clear that the applicant abandoned his challenge to the dismissal of the objections to production of the documents under subpoena. Rather, the singular focus of the applicant’s case was on the dismissal of his objection to the inspection of the documents, and by necessary extension the ancillary orders which flowed from that. That concession was appropriate, as the objections to production were founded in a misapprehension of the relevant legal principles.
The remaining grounds of appeal as directed to Order 8
Grounds 3, 4 and 5 are conveniently dealt with together.
While poorly drafted, in combination Grounds 3 and 5 convey the applicant’s assertion that the primary judge erred in the exercise of her discretion in determining that the inspection of the documents the subject of the subpoena was required to enable a properly informed decision to be made as to what parenting orders would be in the child’s best interests. By Ground 4 the applicant asserts that inspection was not required to “robustly test” the evidence of the therapist, whether as to the possibility of bias, the formation of unjustified opinions, or the wishes and disposition of the child.
In that context, the applicant contends that the Court “had ample evidence of the wishes of and disposition of the child from other sources” including the reports of the single expert witness (Ground 4B), that production of the notes was not necessary to inform cross examination of the therapist, and that the primary judge failed to give sufficient weight to “the harm caused to the child by releasing confidential notes and in balancing the interests of justice with the maintenance of confidentiality” (Ground 5).
The contentions of the applicant are without merit. The subpoena clearly served a legitimate forensic purpose. The opinions of the therapist were to be directly relied upon at trial. They were referred to in the reports of the single expert witness. The facts and observations relied upon by an expert witness in forming their opinion must be proved, and if reliance is to be placed upon the opinion the identified facts must form a proper foundation for it (Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705). Expert witnesses are not witnesses of fact, other than as to matters they directly saw or heard, for example in an interview. Their opinions are only as reliable as the facts upon which they are premised.
The therapist’s notes sought under the subpoena were reasonably anticipated by the primary judge to record the therapist’s observations and what she was told during interviews. Were it not for the issue raised about preservation of confidences, the production and inspection of those notes under subpoena to inform potential cross examination of the therapist as to the opinions expressed in her reports would be entirely uncontroversial.
Even the consideration of the asserted potential harm to the child by “releasing confidential notes” (Ground 5) does not assist the applicant.
Once the parties resolved to seek a report from the therapist for the purposes of the proceedings notwithstanding her original engagement for “non-reportable” therapy, that original characterisation of the therapy self-evidently fell away. The confidentiality sought to be preserved by the objections was then comprehensively and frequently breached by the approach taken jointly by the parties, the ICL and the therapist.
We need look no further than the very first report made by the therapist on 28 April 2021 wherein she recorded, sometimes verbatim, what the child told her during therapy (Report of [the therapist] dated 28 April 2021). The succeeding reports contained a myriad of further examples. How those disclosures, voluntarily made by the therapist at the request of the parties and the ICL, did not offend the confidence now sought to be protected was not explained. Nor could it be.
By Ground 6, the applicant asserts that the issue of the subpoena at the request of the respondent was an abuse of process, directed to her desired goal of seeing the child’s therapy with the therapist cease. Thus, it is contended that the subpoena was issued for an ulterior purpose. The point was only briefly canvassed by counsel at the hearing before the primary judge, and the contention is unsupported by anything but speculation. The legitimate forensic purpose for which the subpoena was issued is already identified earlier in these reasons. No abuse of process is apparent.
There is no merit to any of the grounds of appeal insofar as they challenge the making of Order 8. The decision of the primary judge to dismiss the objections was clearly correct.
The challenge to the remaining orders
As already noted, the singular focus of the applicant’s case before us was directed to the dismissal of the objections, rather than the ancillary orders made regulating access to the documents. Nevertheless, the appeal sought to challenge the making of those ancillary orders. We have had the benefit of reading, in draft, the reasons of Austin J. Noting with respect his Honour’s contrary conclusion about Orders 4 and 6, we consider it appropriate to deal briefly with those matters.
As his Honour correctly notes, the Court has implied power to confine the inspection of documents produced under subpoena to lawyers only. Indeed, in our view such orders are within the contemplation of r 258(b) of the Family Court Rules 2021 (WA).
We agree also that lawyers must conduct proceedings consistently with their multiple duties, on the basis of informed instructions from their clients. We respectfully disagree with the conclusion that Orders 4 and 6 operate to thwart that task by impairing the lawyers concerned from obtaining informed instructions from their clients as to the conduct of the trial in light of the contents of the therapy documents. Two observations may be made in that regard.
First, the restraints imposed did not include any restraint on the lawyers discussing the contents of the therapy documents with their clients. Second, it is clear both from the primary judgment and from exchanges during the hearing which led to it, that the orders were intended to have temporary application only and were open to being revisited after inspection by the lawyers had taken place.
No error in the exercise of discretion is established. While the orders might have been more clearly expressed, and the reasons advanced for them were brief, the reasoning of the primary judge is able to be ascertained. As the orders were designed to be revisited if required and did not by their terms inhibit the lawyers from discussing the content of the produced documents with their clients in any event, they give rise only to potential inconvenience to the parties, but not to any injustice. The challenges to Orders 4 and 6 are without merit.
We agree that it is unnecessary to say anything about Orders 5 and 7, for the reasons stated by Austin J.
DISPOSITION
There being no merit in any of the grounds of appeal, and no injustice occasioned by any of orders made by the primary judge, the application for leave to appeal must be dismissed.
No costs order was sought in the event that the application for leave to appeal failed.
I certify that the preceding eighty (80) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justices Austin, O'Brien, Jarrett. Associate:
Dated: 10 December 2024
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