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.
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Pedersen & Pedersen [2024] FedCFamC1A 229
Case
[2024] FedCFamC1A 229
Decision Date
CaseChat Overview and Summary
Mr. Pedersen sought leave to appeal the primary judge’s dismissal of his objection to the production and inspection of documents produced under subpoena from the child’s therapist. The case involved the interpretation and application of legal principles related to objections to subpoenas in family law proceedings, particularly focusing on the confidentiality of therapeutic communications and the therapeutic relationship between the child and the therapist. The primary judge had dismissed Mr. Pedersen's objections, asserting that the inspection of the subpoenaed documents was forensically desirable and necessary for the proper testing of evidence at trial.
The primary legal issues the court had to decide were whether Mr. Pedersen's objections to the production and inspection of documents were correctly dismissed and whether the primary judge appropriately considered the confidentiality of the child's therapeutic communications. The court had to evaluate whether the objections were grounded in legitimate legal principles and whether the primary judge correctly distinguished between the evaluative decision regarding production and the discretionary decision regarding inspection.
The court found that the primary judge's dismissal of the objections was correct. The objections were misconceived as they were based on the original order for "non-reportable" therapy, which was abandoned by mutual agreement of the parties and the Independent Children’s Lawyer. The court highlighted that objections to the production of documents are evaluative decisions grounded in common law principles, such as absence of a legitimate forensic purpose, fishing, oppression, or privilege. In contrast, access to produced documents and conditions of inspection or copying are discretionary decisions. The court concluded that the primary judge correctly identified that the best interests of the child were not the paramount consideration in the discretionary decision about access to the produced documents. Consequently, the court refused leave to appeal and dismissed the application for leave to appeal, with no order as to costs.
Orders
Orders of the court
NAA 239 of 2024
PTW 5234 of 2019
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
DIVISION 1 APPELLATE JURISDICTION
BETWEEN:
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).
Background
Background to the litigation
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).
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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.