Pieper & Jesberg (No. 3)
[2021] FamCA 58
•11 February 2021
FAMILY COURT OF AUSTRALIA
Pieper & Jesberg (No. 3) [2021] FamCA 58
File number(s): MLC8376 of 2012 Judgment of: BENNETT J Date of judgment: 11 February 2021 Catchwords: FAMILY LAW – PRACTICE & PROCEDURE – objection to production of documents on subpoena in parenting proceedings is not a matter for which the interests of the children who are the subject of the parenting proceedings is the paramount consideration – where a decision on an objection should serve, and not thwart, the best interests of the child or children concerned – where the interests of each child weighs heavily on any decision, but is not the paramount consideration. Legislation: Family Law Act 1975 (Cth) Cases cited: Farmer & Rogers [2010] FamCAFC 253
Re K [1994] FamCA 21
Number of paragraphs: 17 Date of hearing: 11 February 2021 Place: Melbourne Counsel for the Applicant: In person Counsel for the Respondent: In person Counsel for the Independent Children's Lawyer: Mr Whitchurch Solicitor for the Independent Children's Lawyer: VM Family Lawyers Counsel for the Interveners: Ms Nicholson Solicitor for the Interveners: Legal Division, Department of Education and Training Victoria Practitioner for the Department: Ms Norbury Solicitor for the Interveners: Department of Families, Fairness and Housing ORDERS
MLC8376 of 2012 BETWEEN: MR PIEPER
ApplicantAND: MS JESBERG
RespondentINDEPENDENT CHILDREN'S LAWYER
DEPARTMENT OF EDUCATION AND TRAINING VICTORIA
DEPARTMENT OF FAMILIES, FAIRNESS AND HOUSING VICTORIA
ORDER MADE BY:
BENNETT J
DATE OF ORDER:
11 FEBRUARY 2021
THE COURT ORDERS THAT:
IT IS DIRECTED THAT:
1.The letter from the Department of Families Fairness and Housing dated 11 February 2021 be marked “Exhibit DFFH 1” and remain on the Court file.
IT IS ORDERED THAT:
2.The Objection of the Department of Education and Training filed 27 November 2020 be adjourned to a date to be fixed not earlier than a date by which the Independent Children's Lawyer has familiarised himself with the contents of the documents which are subject to subpoena for such documents to be produced.
3.Notice of any adjourned hearing date of the objection be provided to the Legal Division, Department of Education and Training, reference to Ms GG - email ...
4.My reasons for decision this day be transcribed and when settled placed on the Court file and a copy be provided to the parties.
5.For the avoidance of doubt, the therapy which the father is required to undertake pursuant to paragraph 15 of the Order made on 2 October 2020 is to include, but not be limited to, the counselling referred to by Ms FF, psychologist, in the agreement annexed to the Order made on 27 November 2020 which reads as follows: “Mr Pieper is to undertake counselling to assist him to deal with his unresolved issues and pent up frustrations and to assist in the building of boundaries about what constitutes appropriate responses to the children.”
6.Within 14 days the father provide to each other party of the proceedings details of his compliance with paragraph 15 of Order made 2 October 2020.
IT IS NOTED that towards the end of the hearing the father was muted as he would not desist from speaking over me or desist from speaking when requested to do so.
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 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to 17.02 Family Law Rules 2004 (Cth).
IT IS NOTED that publication of this judgment by this Court under the pseudonym Pieper & Jesberg has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
EX TEMPORE REASONS FOR JUDGMENT
BENNETT J
The Department of Education takes objection to subpoenas which were issued at the behest of the Independent Children’s Lawyer on 16 November 2020. The subpoenas were directed to:
(a)The proper officer of the school, Mr KK, principal of HH School (“the school”) to produce documents; and
(b)a welfare counsellor at the school , Ms JJ to produce documents and to attend court to give evidence.
Today, the parents appear in-person, as they are unrepresented. Mr Whitchurch of counsel appears in behalf of the Independent Children’s Lawyer. Mr Whitchurch has had no previous experience in this case which is complex and has occupied many days in Court. The Independent Children’s Lawyer is unfortunately unavailable to give instructions. That is regrettable.
Ms Nicholson of counsel appears on behalf of the Department of Education. The objection is that:
Student chronicle records at pages 4 to 40 of the documents produced to the Court contain confidential communications between C or B, and school staff. This information is not ordinarily provided to, or made available to, parents. The principal is concerned for the safety of C and B, if these documents were to be inspected or copied by the parents directly. We do not object to these documents being inspected or copied by the Independent Children’s Lawyer.
Following production of documents, the Independent Children’s Lawyer obtained an order for their release, and, presumably, has read them. That does no good, however, because Mr Whitchurch has not read them, and he cannot communicate with the Independent Children’s Lawyer at this time.
Ms Nicholson, who presses the objection, referred me to entries in the notes dated 12 November 2020 and 29 October 2020. I read each extract. In my view, put the children’s safety at risk, but they do constitute communications which would ordinarily be considered confidential between the children and the school counsellor. The significance of the children’s conversation with the school counsellor in these proceedings has included evidence that one or both children had planned to run away from the father’s care, which care was pursuant to an Order of the Court, by saying that they would take an overdose of certain medication which would not be particularly harmful, but would be dramatic enough to extricate them from the father’s household. The school counsellor was implicated in formulating the children’s plan to run away. I make no finding as to the accuracy of the allegation. Ms Nicholson was not able to refer me to other parts of the documents as I either did not have them or they were not adequately paginated to find them.
As of today, Ms Nicholson confines the objection to one of confidentiality, and the safety issues. To my mind, there is more merit in the confidentiality as a matter of policy, than there is in the safety.
I asked counsel for the Independent Children’s Lawyer for his position in relation to further inspection of the documents by the mother and the father, and initially, that was that the documents ought be made available to them; however, he says that without any knowledge of what is in the documents, or any specific instructions.
The mother, Ms Jesberg, does not press for inspection of the documents today, and very sensibly says that it would be a matter in respect of which the voice of the children should be heard through whoever represents the Independent Children’s Lawyer and knows what’s in the documents. She criticises the lack of preparedness by the Independent Children’s Lawyer for today’s proceedings. I agree.
The father, Mr Pieper, does press for a release of the documents today. He says that he does so because he believes there should be “full and frank disclosure” of documents in this matter, so that “we can get to the truth of the matter” (or words of like purport).
Mr Pieper is correct that, as between parties to proceedings, there ought be full and frank disclosure. That does not, however, mean that all confidences by the children (or either of them) to third parties must be laid bare.
Orders about subpoenas are not orders made under Part 7 of the Family Law Act 1975 (Cth). I am relieved from the requirement that in making orders, the interests of the children is the paramount consideration. I am also relieved from consideration of matters set out in s 60CC of the Act. That said, authorities such as Re K [1994] FamCA 21 and Farmer & Rogers [2010] FamCAFC 253, require that the decision to which I come should serve, and certainly not thwart, the best interests of the child or children concerned. The interests of each child weighs heavily in any decision, but is not the paramount consideration.
Having heard that the mother does not press for inspection of the documents today and the father seeks inspection in furtherance of “full and frank disclosure”, I am not satisfied that there is any issue before the Court for which the documents produced, and the subject of the objection, are relevant.
I propose to not make any order for inspection of the documents by the mother and the father today, but to hold that matter in abeyance, until the Independent Children’s Lawyer says that he is in a position to advance a case in the interests of the children. It is the task of the Independent Children’s Lawyer to represent the interests of the children in the proceedings. That has not been achieved today.
My deferral of the matter has a consequence in that the Department may have to appear again. That is unfortunate, but there has also been a lack of preparation by the Department for today. I would not need to hear from the Department again if the Department were to make a representation to the Court, either today through counsel, or subsequently by correspondence, that it has made all submission it wishes to make. However, in the absence of that representation, the Department will be required to attend to the press the objection at a later date.
RECORDED : NOT TRANSCRIBED
Belatedly, but with some relevance, counsel for the Independent Children’s Lawyer says that he has been in contact with previous counsel for the Independent Children’s Lawyer, Mr Marchetti. Mr Marchetti is across the matter, having appeared on most occasions for the Independent Children’s Lawyer. It appears, from Mr Whitchurch, that Mr Marchetti has read the documents in issue. The upshot of what Mr Whitchurch has informed the Court indicates that, if at all possible, and without casting any aspersion on Mr Whitchurch whatsoever, the children’s interests would be best represented if Mr Marchetti appeared on behalf of the Independent Children’s Lawyer. I would ask both the Victorian Legal Aid Commission and the Independent Children’s Lawyer himself to give consideration to Mr Marchetti appearing for any future listing of this matter.
RECORDED : NOT TRANSCRIBED
ORDERS DELIVERED
Towards the end of the hearing, the father was muted, because he would not desist from speaking over me, or desist from speaking over others and interrupting when requested not to do so. I will not hesitate to mute the father again if he is disruptive.
In conclusion, today was pretty much a waste of Court time. There are various ways in which the Court can address a waste of time and resources. One way is to hold practitioners or litigants responsible for the recoverable costs of other litigants or third parties. Another mechanism is to preclude practitioners from charging their client.
I certify that the preceding seventeen (17) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett. Associate:
Dated: 26 March 2021
0