R v P.M.L No. Sccrm-01-31

[2001] SASC 79

R  v  P.M.L.
[2001] SASC 79

Nyland J

RULING ON APPLICATION BY RELATIONSHIPS AUSTRALIA (SA) INC TO SET ASIDE SUBPOENA

1. In this matter, L is charged with a number of sexual offences allegedly committed against young boys at a time when he was their coach at the Brighton Surf Life Saving Club.  Those offences are alleged to have occurred between about 1983 and 1985 but did not come to the attention of the police until about December 1998.  One of the alleged victims, P, did not give a statement to the police until about the month of August 1999, which was after the date upon which L was charged and had appeared in court.  As a result of matters contained in that statement, L was charged with two offences relating to P which were alleged to have occurred in 1984.  The lateness of P’s complaint will be a relevant and significant issue at trial.  In order to test the veracity of P’s evidence, it will be necessary for the defence to have the opportunity of examining what P now says about these matters against what he may have said to other people on other occasions.

2. In his statement to the police, P says that in January 1999, he went with his former wife to see a relationships counsellor and that in the course of that visit he told the counsellor what L had done to him.  As a result of that information, a subpoena was issued by the defence to Relationships Australia requesting them to produce the records of that counselling session.

3. Although P and his wife consent to the release of the information sought by subpoena, Relationships Australia has applied to set aside the subpoena on the grounds that the information requested is (1) protected from disclosure by s 19N of the Family Law Act 1975 (Cth) (the Act) and (2) on the grounds of public interest immunity.

4. Section 19N(1) of the Act provides inter alia that the section applies to a family counsellor and it is not disputed that the complaint in this case was made to a counsellor to whom that section applies.

5. Section 19N(2) of the Act then provides that:

   “(2)... Evidence of anything said, or any admission made, at a meeting or conference conducted by a person to whom this section applies while the person is acting as such a person is not admissible:

   (a)in any court (whether exercising federal jurisdiction or not); or

   (b).. in any proceedings before a person authorised by a law of the Commonwealth or of a State or Territory, or by the consent of the parties, to hear evidence.”

6. Section 4 of the Act defines “court” as:

   “  ‘Court’ in relation to any proceedings means the court exercising jurisdiction in those proceedings by virtue of this Act.” (emphasis added)

7. Mr Camatta, who appeared on behalf of Relationships Australia, submitted that s 19N provided an absolute prohibition to any information arising out of the counselling conference with P and his wife being provided to any court for any purpose.  As it was an absolute prohibition, the parties were unable to waive their rights as to confidentiality.

8. In Relationships Australia v Pasternak and Pasternak and Children’s Representative (1996) 133 FLR 462 the Full Court of the Family Court considered whether orders should be made for inspection of marriage guidance counselling records as part of an application for pre-trial discovery in proceedings relating the children of the marriage. The court held that pursuant to s 18 (the predecessor to s 19) anything said or any admission made during confidential marriage counselling was not only immune from admission into evidence but also immune from pre-trial production and inspection. Further, that the paramountcy principle set out in the Act with respect to the interests of children was subordinate to the requirements of confidentiality and inadmissibility contained in the relevant sections of the Act. That is to say that the paramountcy principle must give way to the public interest in maintaining the confidence of statements made in the course of marriage counselling.

9. This issue was further considered by the Full Court of the Family Court in Centacare Central Queensland and Downing and “G” and “K” and Attorney-General of the Commonwealth [1998] Fam CA 109 (judgment of the Full Court delivered on 7 August 1998) (Centacare).  In Centacare, the parties, who were husband and wife, attended confidential counselling.  In the course of the counselling session, the wife admitted to having sexual intercourse with her father.  Her husband then sought to adduce this evidence at the trial of a disputed custody claim.  He caused a subpoena to be issued to Centacare to produce documents relating to the counselling session and for the counsellor, Ms Downing, to give evidence.  The court revisited the decision in Pasternak as there was an argument put forward by counsel which relied on a decision of a differently constituted Full Court, delivered on the same day as Pasternak, which appeared to conflict with Pasternak as to the application of the paramountcy principle.  In resolving this matter, the Full Court in Centacare gave detailed consideration to the policy reasons behind the enactment of s 19N. They considered that confidentiality was essential to effective counselling as otherwise “persons undertaking counselling would do so in the knowledge that there was a likelihood that evidence would be given of things said at the counselling session. This would be clearly contrary to the intention of s 19N to provide for confidential counselling”. The court considered that the arguments in favour of giving s 19N(2) its ordinary meaning clearly outweighed the argument that it should be read down by reference to the paramountcy principle relating to the best interests of children. The court held therefore that evidence of anything said or any admission made at a meeting or conference to which the section applied was not admissible in evidence in any court.

10. Both Pasternak and Centacare, however, were concerned with applications to obtain or adduce evidence of matters raised or discussed in counselling relating to the marriage in proceedings which were concerned with issues arising out of the marriage, that is, contested claims between husband and wife as to the custody of their children.  The need to protect the confidentiality of counselling in those circumstances is obvious.  In this case, however, I am concerned with an application for disclosure of information given at a counselling conference in proceedings which do not in any way relate to the marriage of those parties. 

11. The issue as to whether statements made at a family conference were admissible in proceedings which concerned other than family law matters was considered in Anglicare WA v Department of Family & Children’s Services [2000] WASC 47 (Anglicare).  Anglicare involved a contested care and protection application in the Children’s Court of Western Australia in respect of six children. A married couple, Mr and Mrs D, contested proceedings taken by the Department of Family and Children’s Services. Three of the children were children of the marriage of Mr and Mrs D, the other three were the product of a previous marriage which ended in divorce. Mrs D was the mother of all of the children. Her former husband, Mr B, was also party to the proceedings in the Children’s Court. It appeared that a family counsellor had been consulted by Mr and Mrs D and their family on approximately six occasions, in the course of which she obtained information of potential relevance to the proceedings in the Children’s Court. McKechnie J held that the provisions of s 19N of the Act did not apply to proceedings for care and protection in the Children’s Court of Western Australia. He referred to the argument put to him based on Pasternak and said (paras 25, 26, 27, 28 and 29):

    “In making that submission the plaintiffs rely on a decision of the Full Court of the Family Court in Relationships Australia v Pasternak (1996) 133 FLR 462. In that case at issue was the predecessor to s 19N, namely s 18, and whether a conflict between the paramountcy of the interests of the child and the public interests and the need to preserve the confidences of a counselling session.

    The Court held at 471 that the scales came down squarely in favour of the preservation of the confidence. However, the case is not authority for a so-called broad view of the meaning to be attributed to s 19N, when the effect of the broad view would be to extend the coverage of the Family Law Act to jurisdictions not within the scope of the plain meaning of the Act.

    Relationships Australia v Pasternak (supra) concerned proceedings entirely under the Family Law Act.  Where the ordinary meaning of words in the statutes is plain, a Judge cannot invest them with a different meaning in order to arrive at a solution which the particular Judge considers to be socially just.  A Judge’s duty is to interpret the words used by the Parliament.

    In the present case there is another reason why a court would be slow to go beyond the plain or literal meaning of the Family Law Act.  The Family Law Act is a statute of Federal Parliament. There are good reasons why the Commonwealth would seek to limit the reach of the Federal Act into the jurisdiction of State courts. Such a reach would have constitutional implications. I would be reluctant to interpret s 19N to extend its ambit into proceedings in the Children’s Court of Western Australia without clear and express words being used by Parliament to achieve that purpose.

    For these reasons, I hold that the Family Law Act 1975 has no application to the present case or, in language more suited to injunctive relief, the plaintiffs have failed to establish in this respect a serious question to be tried.”

12. I respectfully adopt the reasoning of McKechnie J. In my opinion, s 19N is an evidentiary provision which is designed to preclude the adducing of evidence in Family Court proceedings of any matters arising out of family counselling. Although s 19N refers to “any court (whether exercising federal jurisdiction or not)”, I do not believe that this enables the section to have the extensive application contended by Mr Camatta. Parliament has chosen to define “court” in s 4 as “the court exercising jurisdiction by virtue of this Act.” That must mean a court dealing with Family Law matters.  That is understandable as it is obviously of critical importance to the resolution of family problems that parties be able freely to participate in confidential counselling relating to issues arising out of their marriage without fear of those matters being raised in any subsequent proceedings relating to them.  But that is not this case.  The subpoena in this case has been issued in criminal proceedings involving a third party and does not relate to an issue concerning the marriage between P and his wife. 

13. Although the documents in this case were created for the purpose of marriage counselling, there is no suggestion that there is any ongoing counselling, or other proceeding on foot relating to the marriage which would require this information to remain confidential. The parties to the marriage consent to the disclosure of it. In my opinion, s 19N of the Act does not apply.

1. There remains the issue of public interest immunity. Mr Camatta did not address any separate argument on this topic but relied on the matters put by him with respect to s 19N of the Act. The principles relating to public interest immunity would now appear to be well settled as a result of the decision of the High Court in Sankey v Whitlam (1978) 142 CLR 1. Although that case was concerned with the production of high level government communications, the immunity has since been extended to cover other classes of documents, such as statements made by police informers and notes of counsellors treating victims of sexual abuse. The latter situation has since been reflected in the enactment in South Australia of s 67E of the Evidence Act 1929 (SA) which protects a communication relating to a victim of a sexual offence, if made in a therapeutic context, from disclosure in legal proceedings by public interest immunity.

2. The question of public interest immunity was discussed by the Full Court of the Family Court in Pasternak. The court ultimately did not resolve the issues in that case on the basis of public interest immunity as it considered that the documents were protected from disclosure by the relevant provisions of the Family Law Act. Nevertheless, the court considered that the relevant documents came within the class of documents which attracted public interest immunity in view of the need to protect the continuing confidentiality of relationship counselling. I endorse that approach and for the same reasons consider that the documents sought to be inspected in this case attract public interest immunity.

3. The High Court in Sankey v Whitlam said that when considering whether documents should be produced or withheld, the court was required to consider two competing aspects of the public interest which might be in conflict. In referring to this matter, Gibbs CJ (at 38) adopted the comments of Lord Reid in Conway v Rimmer (1968) AC 910 wherein he said (at 940):

   “There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done.”

4. In Sankey v Whitlam Stephen J said (at 48-49)

   “These principles, stated in their broadest form, each reflect different aspects of the public weal.  Because disclosure to the world at large of some information concerning sensitive areas of government and administration may prejudice the national interest there exists a public interest in preventing the curial process from being made the means of any such disclosure.  At the same time the proper administration of justice, of prime importance in the national interest, requires that evidence necessary if justice is to be done should be freely available to those who litigate in our courts.”

1. This matter was the subject of further discussion by the High Court in Alister v The Queen (1984) 154 CLR 404. In that case, Gibbs CJ described the test in the following way (at 412):

   “Sankey v Whitlam establishes that when one party to litigation seeks production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates.  The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - ie, when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and on the other hand, that there are or are likely to be documents which contain material evidence.  The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation.”

2. In conducting the balancing exercise referred to by Gibbs CJ in Alister, it is usually appropriate for the court to inspect the documents prior to making any order as to their disclosure.  In this case, the class of documents has been clearly identified but in view of the specific purpose for which disclosure is sought, I have decided ex abundanti cautela to inspect the documents before reaching any final conclusion. 

3. Having done so, I have decided that in this case it is appropriate for the documents to be disclosed.  L is charged with serious offences and the information sought to be obtained by way of subpoena relates to a statement made by P about him in the course of a counselling conference.  Both the prosecution and defence require access to that information for a legitimate forensic purpose.  It relates to a specific and critical issue in the case against L.  Although the question of consent or waiver does not arise with respect to the issue of public interest immunity, I am nevertheless  mindful of the fact that P and his wife have both consented to the disclosure of this information.

4. Taking into account all of these matters, I consider that in this particular case the administration of justice would be frustrated by the withholding of relevant material evidence from the trial, were I to refuse disclosure.  That matter outweighs the public interest in protecting the confidentiality of the counselling at Relationships Australia.  The application to set aside the subpoena is therefore refused.