RADER & RADER
[2019] FCCA 2549
•21 August 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| RADER & RADER | [2019] FCCA 2549 |
| Catchwords: FAMILY LAW – Parenting – subpoenas – objections to access to children’s counselling records – privacy – public interest immunity – applicable law for preliminary issues – first access granted to Independent Children’s Lawyer. |
| Legislation: Evidence Act 1995 (Cth), ss.55, 126, 126J Evidence Act 1995 (NSW), ss.126B, 131A Family Law Act 1975 (Cth), ss.43, 60CC, 69ZM, Pt. VII, div.12A Federal Circuit Court Rules 2001 (Cth), rr.15.09, 15A(14) Judiciary Act 1903 (Cth) |
| Cases cited: Crawford & Sisinis [2014] FamCA 912 Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49 |
| Applicant: | MS RADER |
| Respondent: | MR RADER |
| File Number: | SYC 1641 of 2019 |
| Judgment of: | Judge B Smith |
| Hearing date: | 31 July 2019 |
| Date of Last Submission: | 31 July 2019 |
| Delivered at: | Sydney |
| Delivered on: | 21 August 2019 |
REPRESENTATION
| Counsel for the Applicant: | Ms Campbell |
| Solicitors for the Applicant: | Bowral Legal |
| Counsel for the Respondent: | Ms Lane |
| Solicitors for the Respondent: | Swiftly Legal |
| Solicitors for the Independent Children's Lawyer: | Morton Family Lawyers |
ORDERS
The objections to the following subpoenas filed by the respondent on 23 May, 2019 and 9 July, 2019 be dismissed:
(a)the subpoena addressed to Suburb J family practice filed 10 May, 2019;
(b)the subpoena addressed to Dr A, Hospital B filed 26 June, 2019;
(c)the subpoena addressed to Psychologists C filed 10 May, 2019;
(d)the subpoena addressed to Psychologists C filed 26 June, 2019;
(e)the subpoena addressed to F Radiology network filed 26 June, 2019;
(f)the subpoena addressed to School D filed on 10 May, 2019; and
(g)the two (2) subpoenas addressed to School E school both filed on 10 May, 2019.
The Independent Children’s Lawyer be granted first access to the subpoenas addressed to School D and School E filed on 10 May, 2019 for the purpose of separating out the school counselling records, with such school counselling records to only be accessed by the Independent Children’s Lawyer, and the parties to have leave to inspect all other material produced upon completion of such separation.
The Independent Children’s Lawyer shall have sole access to the material relating to the children’s treatment records, returned by subpoena addressed to Psychologists C filed 10 May, 2019.
The Independent Children’s Lawyer and the parties have leave to inspect the documents produced on subpoena by:
(a)Suburb J family practice;
(b)Dr A, Prince of Hospital B;
(c)Psychologists C in respect of the father;
(d)F radiology;
(e)School D upon the school counselling records being removed by the Independent Children’s Lawyer pursuant to order 2 herein; and
(f)School E school upon the school counselling records being removed by the Independent Children’s Lawyer pursuant to order 2 herein.
The father’s notice of objection filed 7 August, 2019 be adjourned to 13 September, 2019 at 9:30am.
The costs of today be reserved.
IT IS NOTED that publication of this judgment under the pseudonym Rader & Rader is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 1641 of 2019
| MS RADER |
Applicant
And
| MR RADER |
Respondent
REASONS FOR JUDGMENT
Background
This is an oral decision. These are, inter alia, parenting proceedings within Part VII of the Family Law Act1975 (Cth) concerning X now aged 14, and Y, now aged 12. The applicant, Ms Rader, is the mother in the proceedings and the respondent is Mr Rader, the father. They have joined issue on most parenting matters and an Independent Children’s Lawyer has been appointed.
The children currently live with their father and spend no time with the mother. The mother alleges, in effect, intentional alienation of the children by the father. The father’s case is that the mother’s conduct has caused the children to not wish to spend time with her. There is an interim hearing listed in a short period of time to consider what interim parenting orders will be in the children’s best interests.
An issue concerning subpoenas has arisen.
The mother’s entire medical records history, including physical and psychological, has been subpoenaed. The mother acknowledges a history of mental health issues, although the extent of these issues is contested. The mother takes no objection to any of the subpoenas issued, nor to any party having access to the subpoena.
The father’s and the children’s medical records, including physical and psychological records, and the children’s school records have also been subpoenaed. Those subpoenas include subpoenas issued by the mother to Psychologists C for the children’s counselling records, School D for Y’s records, School E for X’s records, and to the Suburb J Family Practice, which I understand is a general practice, in relation to both parties’ and the children’s medical records.
The father, on 23 May 2019, objected to the above subpoenas pursuant to r.15A(14) of the Federal Circuit Court Rules 2001 (Cth).
The Independent Children’s Lawyer, who has raised concerns about the father’s mental and other health issues as potential issues in the proceedings, requested information from the father as to all recent treating medical practitioners. He provided the following names; Dr A; F Radiology; as well as Psychologists C, the same practice as the children in respect of his mental health. Subpoenas were issued to them.
The father filed objections to those subpoenas issued by the Independent Children’s Lawyer pursuant to r.15.09 of the Federal Circuit Court Rules.
I note that each party has filed affidavits raising various issues and I have already dealt with a number of interim matters. The mother’s position is that she does not object to any subpoena issued in respect of her. She urges complete transparency. She agrees it is necessary to consider all issues raised in respect of her mental and physical health.
The Independent Children’s Lawyer, supported by the mother, says the same applies to the father and also that the children, as the subject of these proceedings, require the Court to know fully and without restriction what their physical and mental health status is, as well as what their educational status is.
The father sent the children to Psychologists C. As part of the evidence in his case, the father has tendered reports from counsellors at Psychologists C.
On 27 March 2019 the father’s solicitors sent a letter to Ms G, who is a clinical psychologist at Psychologists C who treats X. That letter refers to Ms G as being an expert witness. I note that a similar letter was sent to Psychologists C care of Mr H, who is also a clinical psychologist, and he treats Y. That letter was sent dated 27 March 2019.
As a preliminary point, the Independent Children’s Lawyer raises objection to the father and/or his legal team writing to treating practitioners purporting to obtain expert evidence from them without any involvement from the mother and/or from the Independent Children’s Lawyer. I note that I also consider it to be quite inappropriate. Considering the children’s treating psychologists as partisan experts is potentially very problematic, particularly given the issues that arise in this case.
Nevertheless, I received the evidence of these two psychologists in reports of 29 March 2019, in response to the letters. That was before these subpoenas were issued.
Ms G noted that X presented with Post-Traumatic Stress Disorder (“PTSD”) and had intrusive memories and flashbacks. She also reported hyper vigilance, feeling numb and cut off. Ms G said that X is a young teen who lacks support and is mistrustful and angry at the way her life has panned out over the last few years. She referred to the “upcoming court case” which I assume in that context was the AVO. I note that this is another issue which the Independent Children’s Lawyer has raised, which is the clear involvement by the father of the children and the psychologists in the litigious process as he wishes them, without any apparent consideration for what is in the children’s best interests and only with a focus on winning the proceedings, and I give some weight to the Independent Children’s Lawyer’s complaint in that respect. I cannot see how what has occurred is in the children’s best interests.
In this context, it was noted by the psychologist that X was steadfast about not wishing to see her mother at the present time.
In a matter of some concern to me, which the Independent Children’s Lawyer raised, the letter of 27 March 2019 to Ms G to which she replies on 29 March 2019, makes absolutely no reference to the question of whether or not documents should be released to any person, and yet despite not being requested to do so in the written request the psychologist has given a paragraph saying:
I also believe that the notes I make in relation to X in session should be kept private. Privacy and trust are crucial to adolescents. It is important that I gain and maintain X’s trust in therapy in order for her to feel safe to open up around her experiences. This is also my reasoning in seeing X individually as opposed to doing family therapy at this stage. If she knew that I was sharing these records with others I suspect I would lose her trust.
A question that arises is why, when this is not a question that has been raised in a letter of instruction, that expert chose to specifically address this question which has now arisen in Court, and it goes, to some extent, to the concern that has been raised by the mother and which the Independent Children’s Lawyer notes is a possible concern, which is whether or not the father has either himself or through the solicitor had other correspondence with the psychologist explaining their position, raising legal issues with them, and so making them into partisan experts.
As I said, a similar letter was sent on 27 March 2019 to Mr H, and, again, I will note that that letter does not say, “Please address the question of whether or not your documents should be released”.
Mr H provides a report of 4 April 2019. He says that he has started seeing Y on 19 November 2018. He said he had PTSD. He reports that Y refers to eight occasions when the mother was violent towards him. He said the mother was frequently intoxicated. Mr H said Y presented as distressed, sad and withdrawn. He says:
To date my treatment with Y has involved establishing trust and safety within the therapeutic relationship and the management of PTSD symptoms through strategies such as processing difficulties and etcetera.
He says the events experienced by Y and resulting disturbances had caused him clinically significant distress. He says that each time an issue involving his mother arises, including current legal matters, Y experiences a spike in distress, increased negative symptoms and a decline in his mental state which, again, the Independent Children’s Lawyer points to as clear and concerning evidence that the father is involving the children in these legal disputes without reference to what is in their best interests and with a primary focus on winning the litigation.
It is noted that Y has stated to the psychologist he does not wish to currently see his mother as he is fearful her behaviour has not changed.
Before I move to the next letters I will note that, of course, I do not know what the truth is as to whether or not what is being alleged occurred or not, but that does not take away from the complaint made by the Independent Children’s Lawyer that by apparently involving the psychologists as partisan expert witnesses, the approach being taken raises doubts about the father’s bona fides and muddies the waters as to whether or not any trust can be placed in what these psychologists say.
I will note that in the context of these subpoenas, the father obtained further reports from the psychologists.
In a letter of 20 May 2019 to Ms G, the issue of whether an order granting the parties permission to inspect X’s medical records was raised and is addressed, but as I have noted it has already been addressed in an earlier report despite it not having been raised in the written request, which creates a real impression that there is correspondence going on which is not revealed in the letters and which is making these apparent treating psychologists into partisan experts.
In a letter of 22 May 2019 Mr H repeats much of what was said before. In respect of the issue of release of information he says:
If Y does not trust that the information he shares in session will not be relayed to his parents, Y will almost certainly refrain from fully sharing his own feelings, thoughts, beliefs, and experiences. Given one of the factors maintaining Y’s problematic symptoms is using avoidance as a coping mechanism, further withdrawal and internalising of his distressing experiences will likely exacerbate his PTSD symptoms and worsen his mental health. Further, as Y has previously reported physical and psychological abuse perpetrated by his mother, I hold concerns that Ms Rader having access to this information related to therapy may place Y at risk of further physical and psychological harm.
And he continues that:
Given that during previous disputes and legal matters involving his mother, Y has experienced a spike in distress, increased negative symptoms, and a decline in his mental state, I expect that Y knowing his mother has requested his notes and read through them, will again trigger these negative experiences.
And, again, the Independent Children’s Lawyer raised, quite appropriately, the fact that the only way Y is going to know that his mother has issued a subpoena is because someone, in other words the father, has told him, and it again raises real questions about whether or not, regardless of whatever the mother had done, the father has any interest in his children’s wellbeing or is only focused on winning the fight, regardless of the damage done to the children. So even if he is generally in the right, the way in which the father is conducting this litigation is very damaging to the children and suggests that he is not in any way child focused.
Mr H says:
It is difficult for me to determine whether an order granting the parties permission to inspect Y’s medical records and school counselling records may pose any risk to his physical and/or psychological wellbeing. Though my assumption is that the same potential risks would apply as I’ve discussed above in relation to documents related to my treatment with Y.
And he also notes it may include information relating to other people, which is outside his field of knowledge and expertise. A similar letter from 22 May 2019 from Ms G in respect of X. She says:
I firmly believe that any order to grant the parties permission to X’s therapy file will detrimentally impact my relationship with her.
And later:
Whilst allowing her file to be made available to either parent may not pose any physical threat, it would definitely impact her psychological well-being because of the likelihood of the above occurring... She already reports feeling as though her mother is “punishing her” from afar (e.g. By (sic) reportedly not permitting her to travel to the US recently)…
And in that regard I will note that the Independent Children’s Lawyer says that when she spoke with the children they came in and recited to her verbatim what had happened in the Court proceedings before me, indicating that the father has been choosing to use the conduct of the proceedings as a way to, on this particular aspect it seems, alienate the children.
It has been suggested that the Independent Children’s Lawyer may be required for cross-examination. I note that div. 12A will apply and that any such application can be made, but a suggestion that the Independent Children’s Lawyer is lying to me about what the children have said to her will have to be considered very carefully in line with people’s professional obligations.
Ms G concludes that:
Regarding the parties (sic) permission to inspect X’s medical records or school counselling records I believe this is a question for the school counsellor and relevant medical professionals. I have stated clearly above that I veto the idea of either parent accessing her medical records related to our therapy here at Psychologists C.
It is an unfortunate choice of words, as Ms G has absolutely no right to “veto” anything. Nevertheless, I take her opinion as it is stated. I should note that the material here is directed basically to the mother and no reference is made to the Independent Children’s Lawyer who acts on behalf of the children.
On behalf of the father, extensive legal submissions were made about the law. Some of them were uncontentious but some of them are. The general principles relating to subpoenas are well-known as to require no further discussion and they are summarised to some extent in Crawford & Sisinis [2014] FamCA 912.
The first argument that is made is that the children are not a party to the proceedings so that the principles applying to non-parties to proceedings arise and that their privacy should not be invaded. I think that that is a fallacious analogy.
To suggest that the children who are the subject of family law proceedings are in the same position as a third party adult being brought into litigation between two other people has no merit whatsoever.
They are the subject of the proceedings, not a party. This is an inquiry into what is in their best interests and to suggest that the Court should not look into how their schooling is going or what their health is because they are third parties needs no more to dispose of it.
On the question of relevance, well, that is s.55 Evidence Act 1995 (Cth), and even though s.55 may not apply at this stage the common law test is similar, and I refer to National Employer’s Mutual General Insurance Co Ltd v Waind (1979) 141 CLR 648. What we are looking for is something that could possibly throw light on the issues of the substantive proceedings. It is a very low test.
It was suggested that the question of apparent relevance is established by reference to the affidavit material filed in the proceedings. I would agree that this is one way in which it is established, but the other way in which it is clearly established is by looking to the provisions of the Act and looking, in particular, to s.60CC and the mandatory matters which this Court must consider, and that is very broad.
The question of public interest immunity was pressed in the written submissions, but only faintly in oral submissions. I note what Justice Watts said in Feinster & Feinster and Anor [2006] FamCA 232 and what Deputy Chief Justice McClelland said about that in Riemann & Riemann [2017] FamCA 318. I adopt in particular Deputy Chief Justice McClelland’s persuasive comments at [95]:
Given the approach of the parties in this matter it is unnecessary for the Court to determine whether similar public interest immunity exists in Australia. Moreover, if there was to be such a development it should occur at appellate level or by way of law reform.
This is a first instance trial Court. It will not be creating or purporting to create new categories of public interest immunity and, in any event, I doubt very much whether this kind of immunity would ever form part of the common law.
There was an interesting, but in my opinion fundamentally flawed, argument that ss.126B and 131A of the Evidence Act1995 (NSW), (I emphasise, New South Wales not Commonwealth), apply to the preliminary question of subpoenas in a Federal Court hearing a matter in New South Wales prior to an interim or final hearing when the Evidence Act 1995 (Cth) will then apply.
Reliance was placed upon s.79 of the Judiciary Act 1903 (Cth) and, in particular, Masson & Parsons (2019) 368 ALR 583. It seems to me to be misconceived. Section 79(1) of the Judiciary Act states that:
79 State or Territory laws to govern where applicable
(1) The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
The High Court indicated in Masson & Parsons one needs to look to whether or not the legislation in effect covers the field, and it seems to me to be absolutely clear that the Evidence Act 1995 (Cth) covers the field that the Evidence Act 1995 (NSW) covers.
Nor could it be said that there is a lacuna. The simple fact is that the Evidence Act 1995 (Cth) could, but does not, include an equivalent of s.126B of the Evidence Act 1995 (NSW). One only needs to look at the numbering where the gap has been left between ss.126 and 126J for consistency with the New South Wales Act.
The law that applies is the same law that would apply in New South Wales, but for the extension of the Evidence Act 1995 (NSW) by s.131A, which is the common law of Australia. The attempts to get around the common law by extending the Evidence Act 1995 (NSW) to legislation without a provision such as s.131A of that Act, or of the Commonwealth equivalent, were unsuccessful: see Mann & Carnell (1999) 201 CLR 1; Esso Australia Resources Ltd v Commissioner of Taxation (Cth) (1999) 201 CLR 49.
I note that the father referred to decisions at first instance of this Court in support of this proposition, including Jermyn v Carling [2012] FMCAfam 814, Milne & Milne [2013] FCCA 1620 and Yan v Yan& Anor [2014] FCCA 2519. These cases involved an acceptance that the Evidence Act 1995 (NSW) would apply in these circumstances following a decision of a Justice of the Family Court of Australia sitting at first instance in South Australia in Goldy v Goldy (No.2) [2011] FamCA 418 who took that approach in respect of the South Australian legislation. I have reviewed them. I note they were decided before the recent restatement in Masson & Parsons. These decisions do not bind me and I will not apply them.
Which then brings us to the argument which broadly covers the same field, and which does have some merit, and that is the question of the application of ss.43 and 69ZM of the Family Law Act.
In the context of the same argument as is raised here concerning the granting of access to subpoenaed notes in Riemann & Riemann [2017] FamCA 318, the learned Deputy Chief Justice McClelland said at 103:
The children’s right to privacy, however, must be balanced against the public interest of ensuring that, insofar as it is reasonably practicable, the Court has all relevant evidence before it when considering the best interests of the children.
And continued, in the context of quoting Cantor J in R v Barton & Ors [1981] 2 NSWLR 414 at 419, adopted the statement that:
The Court will consider the nature of the documents specified and will determine as best it can the issues likely to arise. If it appears an issue may arise in litigation to which the documents may relate than I believe the right of the litigant should prevail over the right of the witness. Unless it appears that an issue may arise to which the documents may relate then the right of the witness will prevail. (emphasis added in quotation)
Even if applying a third party test, the question for the Court is what is in the best interests of the children, and if these are documents which can assist the Court to understand what is in the best interests of the children, then the Court should have access to them.
In that particular case at paragraph 124, the Court decided the children’s interests should be protected by the Independent Children’s Lawyer having first access to the documents, and it seems to me that that is a good guiding principle.
The evidence before me suggests that the children, who should not have been told about this but clearly have been, may become distressed should they become aware that the mother has access to the material, but the Independent Children’s Lawyer is their lawyer and representative, and that may be one way to overcome this issue.
I note Crawford & Sisinis, which picked up Feinster in not accepting the public immunity argument, also adopted the course that the Independent Children’s Lawyer should have access to the documents first to see where to go, again, supporting that as a possible option.
I was also referred by the father to Tsocas & Rilak [2018] FamCA 981 where Justice Gill in the Family Court noted at 22:
At least three issues of principle arise. There is a public interest in having proceedings determined based upon relevant evidence. It is in the child’s interests to have the correct decision made as to what is in her best interests, being a decision made on relevant evidence. The impact upon the child is also a mandatory consideration.
He goes on later at 24:
Where the matter goes to the substance of the proceedings, for example, the exclusion of material relevant to the proceedings, which it may also be in the interests of the child to obtain, there is a significant push against taking the course that will exclude access to the material to protect the child from the adverse consequences of there being access to the material.
And at 29 to 30:
There is good reason to consider that it is possible or probable that information obtained in the therapeutic process that formed part of the orders causing the change in residence, and obtained in the context of the child living with the father and not seeing the mother, will bear upon the mother’s overall application and, in particular, on whether it is justified that there be further assessment of the child.
It is material that has the potential to be decisive on the question of the further assessment of the child, and potentially on the ultimate question of what is in the child’s best interest. This weighs in favour of granting access, both because of the public interest and interests of the child to have a decision made in her interests.
The clear weight of authority, including the authority referred to by the father, is that the Court will not stop itself in particular or the parties from having access to material that may bear upon the ultimate decision as to the best interests of the children or even interim decisions. It is clearly all relevant material.
We are talking about the children, and I note that it was raised that one of the difficulties that this Court deals with on a regular basis are circumstance where one parent will take children to a psychologist and then that well-meaning, but perhaps inexperienced, psychologist in the contexts of family disputes will listen to one version of events. They will hear the child repeat that version of events. They will accept that as gospel, and then they will proceed not only to act on that basis but to reinforce that view as if the truth, and, unfortunately, it is not an inconsiderable number of cases where the Court has subsequently determined that it is clear from the facts that the version of events given to the psychologist was not true, and yet the psychologist’s reinforcement of that version of the facts to the child has made it true in the child’s mind which is, of course, itself an insidious form of child abuse as the Courts have said.
Now, in this case I do not know what the facts are, but it seems to me the overwhelming weight of authority, and given the evidence in this case, are that someone at least should have access to the material to consider whether it may assist the Court.
It seems to me, balancing the various interests, that since the children have their own lawyer, in the first instance I will make an order this shall be the Independent Children’s Lawyer only.
Before I go on I will just note a few other things. The submissions in respect of ss.43 and 69ZN relate to both the psychologist and also the counselling records at the school, and I would extend the restriction to the Independent Children’s Lawyer in respect of both of those things.
There is an objection to the subpoena to School D as being a fishing expedition. It is not a fishing expedition; it is the child’s school. The child’s education, including, since payment is an issue, the payment of school fees, are clearly relevant factors. There is also an objection that it is too wide because it says “all documents”. Well, if someone from that school came and said, “We as third parties do not understand what that means”, that might be something, but they do not seem to have any difficulty understanding what it means. The same arises in respect of School E. I think these are absolutely unsustainable objections.
It is suggested that the medical records are not relevant because no one is saying the children are not healthy. Well, clearly they are not healthy; they are being treated by a psychologist, and the mind/body interface is relevant. I also have to consider their health as mandatory conditions under s.60CC. I must say, I have never seen anyone object to this kind of subpoena before and it concerns me that it indicates an approach to litigation which reflects this as being some form of commercial litigation rather than a case to try and determine what is truly in the best interests of the children. That is a forensic matter for the father. In the same way it is said to be oppressive and fishing but, again, the people at the practice have not raised any issue. They seem able to understand it perfectly well.
The father says in respect of his health it is also a fishing expedition. Again, I reject that. It seems to me that a fishing expedition is not what this is. We know who the health practitioner is. The father’s health is clearly a relevant factor as to his capacity to obtain the orders he seeks. I did pause about F Radiology, but that is a treating medical practitioner and I do not see there is any reason that, given the mother is disclosing all of her medical records, that the father could have any reason to not disclose that.
The father says that he has no health concerns, so it is difficult to see why he is complaining so vehemently.
As such, I will make the orders as stated herein.
I certify that the preceding sixty-nine (69) paragraphs are a true copy of the reasons for judgment of Judge B Smith
Date: 16 September 2019
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