Riemann & Riemann - [2017] FamCA 318

FAMILY COURT OF AUSTRALIA

RIEMANN & RIEMANN

[2017] FamCA 318

FAMILY LAW – PRACTICE AND PROCEDURE –Where the father seeks leave to inspect subpoenaed documents produced by the organisation providing psychological counselling to the children –Where the children’s psychologist objects to the parties having access to the subpoenaed documents – Consideration of Division 12A of the Family Law Act 1975 (Cth) –Relevance to the proceedings –Where the Court finds that the children were entitled to have their interests properly represented –Where the Court finds that the children’s interests have not been properly represented as a first inspection of the documents produced has not occurred – Orders made for the Independent Children’s Lawyer to have first right of access to the subpoenaed documents to redact material not relevant to the proceedings.

Family Law Act 1975 (Cth), ss 43, 43(1)(c), 60B, 60B(4), 69ZN, div 12A

Family Law Rules 2004 (Cth), rr 15.16, 15.22, 15.26, 15.30, 15.31, 15.31(b), 15.32
Explanatory Memoranda Family Law Amendment (Shared Parental Responsibility) Bill 2005 (Cth)
National Legal Aid, Guidelines for Independent Children’s Lawyers (2013)

United Nations Convention on the Rights of the Child, opened for signature 20 November 1989, UNTS 1577 (entered into force 2 September 1990) art 3, 12, 16

Child Support Registrar & Nixon [2007] FamCA 32
Crawford & Sisinis and Anor [2014] FamCA 912
Farmer & Rogers [2010] FamCAFC 253
In the marriage of Blann & Blann (1983) FLC 91-322
Kinsella v Kinsella 696 A.2d 556 (NJ, 1997)
National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372
Official Trustee in Bankruptcy v Donovan and Donovan and Stevens (1996) FLC 92-703.
R v Barton and Ors [1981] 2 NSWLR 414
The Queen v Watson; Ex parte Armstrong (1976) 136 CLR 248

APPLICANT:

Mr Riemann

RESPONDENT:

Ms Riemann

INDEPENDENT CHILDREN’S LAWYER:

Mr O'Dowd

FILE NUMBER:

SYC

5764

2014

DATE DELIVERED:

1 May 2017

PLACE DELIVERED:

Sydney

PLACE HEARD:

Sydney

JUDGMENT OF:

McClelland J

HEARING DATE:

In Chambers

REPRESENTATION

COUNSEL FOR THEAPPLICANT:

Mr O'Ryan QC

SOLICITOR FOR THE APPLICANT:

Broun Abrahams Burreket

COUNSEL FOR THE RESPONDENT:

Mr Kearney QC

SOLICITOR FOR THERESPONDENT:

Lander and Rogers

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Legal Aid NSW Sydney Central Family Law

Orders

Subject to Order 2 below:
a)The Independent Children’s Lawyer is granted leave to inspect and photocopy the documents produced by F Psychology pursuant to the subpoena issued by the Independent Children’s Lawyer on 9 September 2016.
b)The Independent Children’s Lawyer is to redact from the photocopied documents the material, if any, that in the opinion of the Independent Children’s Lawyer is of no apparent relevance to the parenting proceedings (“the redacted documents”).
c)The Independent Children’s Lawyer is to provide Dr E and the parties with a copy of the redacted documents within 48 hours of those redactions having been made.
d)The parties are restrained from discussing the contents of the redacted documents with any other person not directly related to the proceedings.
e)Subsequent to being provided with the redacted documents, the parties’ legal representatives (but not the parties) are granted leave to inspect (but not to photocopy) the original un-redacted documents produced by F Psychology.
f)If, subsequent to the parties’ legal representatives inspecting the documents in accordance with order 1(e) above, a party wishes to challenge any redaction made by the Independent Children’s Lawyer, in accordance with Order 1(b) above, they may do so upon providing 48 hours’ notice to the other party, the Independent Children’s Lawyer and to the Court.
If the Independent Children’s Lawyer is unable or unwilling to act in accordance with Order 1(a), 1(b) and 1(c) above, or, having inspected the documents, is of the opinion that provision of the redacted documents to the parties would expose the children to an unacceptable risk of psychological or physical harm, then within 48 hours of the Independent Children’s Lawyer becoming aware of that fact or making that decision, the Independent Children’s Lawyer is to apply for the matter to be listed for further directions and is to notify the parties of that request.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Riemann & Riemann has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

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 r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 5764 of 2014

Mr Riemann

Applicant

And

Ms Riemann

Respondent

REASONS FOR JUDGMENT

Introduction

The parties have been involved in protracted litigation concerning both parenting and property matters since 2014. The parenting matters concern the parties’ three daughters; B born in 2002 and currently aged 14, C born in 2005 and currently aged 11, and D born in 2007 and currently aged 9.
I have set out the background to the dispute in respect to parenting matters at paragraphs [12] to [18] of my decision delivered on 8 April 2016. I will not repeat that background in these Reasons.
As noted in my decision of 12 December 2016, on 25 October 2016, on the application of the father, I vacated the final hearing in relation to the parenting proceedings which had been set down for five days commencing on 31 October 2016. Those dates were vacated as a result of an opinion expressed by the Single Expert, Dr E, in his updated report dated 24 September 2016, wherein he recommended that the schedule in place for the father to spend time with the children be suspended “…probably until towards the end of first term 2017”.
As a result of vacating the October 2016 trial dates, orders were made on 25 October 2016 listing the matter on 8 November 2016 “in order for the Court to consider such procedural or other orders that the parties submit should be made in respect to the progress of parenting and financial matters”.
On 8 November 2016 procedural orders were made to facilitate steps being taken by the parties and the Independent Children’s Lawyer (“the ICL”) in preparation for the final hearing of both property and parenting matters. The matter is now listed for two weeks commencing on 13 June 2017.
The parenting matters left outstanding on 8 November 2016 related to:
1.What school the children should attend;
2.The possession of the children’s passports; and
3.The question of an objection to access the clinical notes produced pursuant to a subpoena issued to F Psychology, which is an organisation that has been providing counselling services to the parties’ children.
On 8 November 2016, the Court also dealt with, on a preliminary basis, the issue of an objection raised by Dr H, the principal psychologist at F Psychology, to the parties having access to the documents produced by F Psychology.
The issue considered in these Reasons concerns that objection.
The order sought by the father in respect to access to the documents produced by F Psychology was as follows:
13. The legal representatives and the parties have leave to inspect the notes and documents produced by [F Psychology] pursuant to the subpoena issued at the request of the Independent Children’s Lawyer on 9 September 2016.
Both the mother and the ICL opposed that order being made at this stage of the proceedings.

Procedure

By way of consent orders dated 15 February 2017, the parties agreed to a procedure for the determination of the objection to the F Psychology subpoena. Relevantly, Order 12 of those consent orders provided as follows:
…
12. That in relation to the subpoena issued to [F Psychology]:
12.1 The husband file and serve any written submissions by 24 February 2017;
12.2 The wife file and serve any written submissions by 3 March 2017;
12.3 The ICL file and serve any written submissions by 10 March 2017;
12.4 That the husband and the wife file and serve any written submissions in reply by 17 March 2017.

Written submissions

The parties’ written submissions were received on the following dates:
a)On 27 February 2017 the father filed his written submissions;
b)On 6 March 2017 the mother filed her written submissions;
c)On 15 March 2017 the ICL filed written submissions;
d)On 22 March 2017 the father filed written submission in reply;
e)By email dated 29 March 2017 the Court was advised that the wife did not intend to file any written submissions in reply.

Relevant chronology

Queen’s Counsel for the father provided a detailed chronology of events that, it was submitted, are relevant to the Court’s consideration of this matter. In respect to that chronology, I regard the following as being of greatest relevance to my consideration of this matter.
By orders made on 27 October 2014, Dr E was appointed as the single expert to report in respect to parenting matters.
By letter dated 27 April 2016 the solicitors for the mother proposed that, in addition to Dr E, Dr H, the principal psychologist at F Psychology, also be appointed as a further expert to report on each “child’s emotional needs and the efficacy of ongoing counselling in promoting the children’s relationship with their father.” By letter dated 27 April 2016, the father’s solicitors advised the mother’s solicitors, that that proposal was rejected by the father.
By Orders made on 29 April 2016 Dr E was requested to provide an updated single expert report in relation to parenting matters.
By letter dated 23 August 2016 the solicitors to the mother wrote to the ICL and enquired as to whether the ICL intended to issue a subpoena to F Psychology “so as to facilitate an inspection by Dr [E] of their notes of therapy sessions with the children.”
On 9 September 2016 the ICL sent an email to the parties’ solicitors advising that “subpoenas are being issued to [F Psychology] and [Q School].” The email also attached a proposed draft letter to Dr E which advised “I will be issuing a subpoena to [F Psychology] and an update subpoena to [Q School] and will provide that material to you shortly.” The email also enclosed an Authority, for the parties to execute, authorising Dr H to discuss the treatment and therapy provided to the children and the parties with Dr E. The father signed that Authority and contends that he did so on the understanding that the subpoenaed notes would also be provided to Dr E.[1]
[1] Annexure A to the Father’s Submissions at paragraph 90.
On 9 September 2016 the ICL issued a subpoena to F Psychology which sought production of the following:
1. …
2. A copy of all documents including but not limited to clinical notes, attendance records, assessments, treatment, diagnosis and prognosis, reports, correspondence and all other writings in relation to:
·[Mr Riemann],         born on …/…/1967
·[Ms Riemann],         born on …/…/1968
·[B],  born on …/…/2002
·[Mr Riemann]  born on …/…/1967 [sic]
·[Ms Riemann]          born on …/…/1968 [sic]
On 13 September 2016 the ICL wrote to Dr E in the terms foreshadowed in the attachment to his email dated 9 September 2016 and, specifically, included the following paragraph:
I will be issuing a subpoena to [F Psychology] and an update subpoena to [Q School] and will provide that material to you shortly. I also note that the parties have consented to you speaking to Dr [H] directly and an authority for this purpose is being signed and will be forwarded to your office.
By letter dated 15 September 2016 the solicitors for the father requested the ICL to provide additional material to Dr E and requested that the Authority for Dr E to speak with Dr H also include Dr G.
By email dated 19 September 2016 the solicitors for the father wrote to the ICL and noted that the subpoena issued to F Psychology only included the parties and did not include the parties’ youngest daughters, C and D. Accordingly, the solicitors for the father requested that a fresh subpoena be issued.
By letter dated 22 September 2016 F Psychology produced to the Court the documents requested in the subpoena. The documents were accompanied by a letter which read:
To the Exhibits Clerk,
RE: [RIEMANN & RIEMANN]
Court Ref No: (P) SYC5764/2014
Please find enclosed the documents named in the subpoena dated 16/9/16 to the Proper Officer [F Psychology]. These documents are provided to the court to comply with the subpoena.
I object to the inspection of these documents by any party outside of Dr [E] and the Lawyers representing each parent and I ask that the parents do not read these clinical files. I ask this on the following bases:
·The documents requested are sensitive personal health records, the disclosure of which could pose a serious threat to the psychological wellbeing of the individual, which may include harm to physical or mental health.
·Even if the potential threat to the health of the individual is not such that it could be classified as ‘serious’, the effect on treatment caused by the undermining of the relationship of trust between myself and the client could cause long term or irreparable harm to the wellbeing of the client and the therapeutic relationship, possibly not just with myself as their treating psychologist but with psychologists in general.
·To disclose the information contained in these documents will conflict with my obligation under privacy legislation not to release information that would have an unreasonable impact on the privacy of a person other than the client.
·Psychology is a specialist profession. Reference to the information contained in these documents without explanation of the context in which they are written is unlikely to assist the court, or either parent and has the potential to cause a significant miscarriage of justice. (emphasis added)
By email dated 27 September 2016 the solicitors for the father again notified the ICL that the schedule to the subpoena related to only Mr Riemann, Ms Riemann and B, and requested advice as to when a new subpoena would be issued.
By email dated 5 October 2016 the ICL provided the parties with a copy of an updated report from Dr E dated 24 September 2016. At page 32 of his report, Dr E recommended that neither party read the subpoenaed records of F Psychology, stating:
Since it is my view that the continued support of this practice is going to play a key role in a positive outcome for this family, it is my view that the confidentiality of each of the family members should be protected and with that in mind, and bearing in mind the capacity of this family for volatility, it is my view that the practice records should not be read by the parents as I am concerned that things which the other parent or the children have said may lead to further conflict and grievance.
By letter dated 7 October 2016 the solicitors for the mother wrote to the solicitors for the father and referred to the recommendation of Dr E in respect to the parties refraining from reading the subpoenaed material produced by F Psychology. The mother’s solicitors proposed inter alia:
In the circumstances, we propose that neither the parties, nor their solicitors, inspect the subpoenaed records of [F Psychology] at this stage, and that the question of whether the contents of such documents should be made available at trial be reserved for determination before the trial judge.
Please advise whether your client is agreeable to adopting this course of action in relation to these documents. In this regard, we note that the Commonwealth Law Courts Portal records the subpoena to [F Psychology] as “awaiting production” and that the documents are yet to be produced.
Our client remains concerned about the ongoing impact of these proceedings on [B] in particular, and does not wish for anything to jeopardise the therapeutic relationship established between all three girls (but in particular [B]) and [F Psychology].
By letter dated 19 October 2016 the solicitors for the father wrote to the solicitors for the mother and proposed that, in light of Dr E’s updated report, the hearing set down to commence on 31 October 2016 in respect to parenting matters be vacated. The letter also proposed that parenting and property matters be heard together for the following reasons:
Next, Dr [E] opines, and we agree, that the extant nature of the financial issues between the parties impedes resolution of the parenting issues. It is now apparent from the recent report that the financial and parenting proceedings need to be addressed concurrently and on an expedited basis. Plainly, the hearing of the financial applications cannot commence in the presently allocated hearing time. If contact between our client and the children is suspended for the period that Dr [E] opines then it would clearly be possible for all issues to be heard together.
By orders made on 25 October 2016, the October hearing dates were vacated and the matter was listed on 8 November 2016 for further directions.
On 28 October 2016 the ICL sent an email to the parties which read as follows:
Dear Colleagues,
I note this matter is listed for further consideration of outstanding issues on 8 November 2016.
As discussed at court on 25 October 2016, the issue of access to [F Psychology] subpoena material that will canvassed that day.
In my opinion the legal representatives and the ICL will require access that [sic] that material prior to 8 November 2016 so we are all in a position to determine what (if any) submissions need to be made in relation to this issue.
I have not yet filed a Notice of request to inspect in relation to the [F Psychology] material. If there is agreement about legal representatives and ICL only access at this stage then I will write to the Associate to obtain this access. (emphasis added)
On 28 October 2016 the solicitors for the father replied to the email from the ICL and advised:
We agree with the approach suggested by the ICL. (emphasis added)
By email dated 28 October 2016 the solicitors for the mother replied to both the ICL and the solicitors for the father stating:
We are of the view that protecting the confidentiality of [F Psychology’s] records (which Dr [E] deems important in the therapeutic process required for the [Riemann] children, as described at Part n of his report) is inconsistent with them being made available to each party’s legal practitioner.
We are of course content for Mr O’Dowd [the ICL] to view the records and raise any matters that he considers necessary at the direction hearing, but consider there to be a fundamental and unavoidable conflict attendant upon the provision of these records to the solicitors for the parties, given our ongoing professional responsibilities to our clients.
If it is Dr [E’s] view that the records should not be made available to the parties, in order to avoid the potential conflict and grievance for the children to which he refers, then this prohibition should in our view extend to the solicitors for the parties. (emphasis added)
By email dated 7 November 2016, the ICL advised the parties:
As there is no agreement in relation to access I will be raising this issue with the court for determination on 8 November 2016.
I note both Ms [V’s] comment in relation to conflict and the contents and recommendations of Dr [E] 2016 update report. It is my view that the issue of procedural fairness and whether the [Riemann] children can maintain a therapeutic relationship with [F Psychology] will also need to be canvassed.
…

The issue of the subpoena to F Psychology was considered on a preliminary basis in the proceedings on 8 November 2016. The following exchanges reflect the preliminary positions as expressed by the parties on that day.
The ICL summarised his concerns in the following terms:
MR O’DOWD: A suggestion was made in the usual course for – and, sorry, Dr [H] herself or someone at [F Psychology] sent a covering letter with the material suggesting that the parents not see that material. In my opinion that raises significant concerns in relation to Dr [E’s] reliance on a conversation with Dr [H] for which no-one can access the material, Dr [E’s] overall recommendations, which involve the ongoing use and the ongoing involvement of the [Riemann] family, shall I say in general terms, with [F Psychology] in circumstances where and quite rightly the mother’s solicitor points out if leave is granted to legal representatives, then those representatives have problems in relation to conflict if they have looked at material that experts are suggesting shouldn’t be looked at by their clients. There’s also aspects about suggestions of me having first access and looking and I’d be opposing that particularly in a matter of this contentious nature. It would put me in a position, in my opinion, of becoming a witness, particularly in circumstances where there may be aspects of material that [F Psychology] have produced that causes concern in relation to the parents viewing that material. (emphasis added)
In respect to the request made by Dr H on the behalf of F Psychology that access to the documents produced by them initially be restricted to the ICL and legal representatives only, counsel for the mother stated the mother’s preliminary position as follows:
MR SWEENEY: Well, your Honour, it creates a problem because the minute the lawyers see it, I think there’s a – they’re duty-bound, are they not, to make all of the information and knowledge that they have available to their client for the use of their client.
HIS HONOUR: Well, yes and no, depending on their instructions. If they’re instructed to examine the documents on that understanding that they will make an assessment - - -
MR SWEENEY: I don’t have any problems if each of the parties instructs their lawyers that that’s the only base from which they can do it, that’s the end of the matter. I don’t have a problem - - -
HIS HONOUR: And on the understanding that the lawyers will come back to them if they think an application should be made to the court to expand that access.
MR SWEENEY: Yes. As long as that’s not seen as, effectively, waiving a notional privilege.
Queen’s Counsel for the father expressed the following concerns:
MR O’RYAN: But, in this circumstance, your Honour, where there is no application by Dr [H], she could have made an application. There’s provision for that in the rules. There were then the opportunity to know precisely what was the form of privilege that was relied upon and your Honour refers to in discussion public interest, because there’s no medical professional privilege at common law or under the – under the Family Law Act or under the Commonwealth Evidence Act. And even in relation to if I want to apply by reason of section 19 of the Judiciary Act, the New South Wales Evidence Act, the authorities in relation to that provision dealing with confidential information is when you aren’t using the material in evidence. Because the consistent – the authority is you produce the document, you inspect them and then you will use them in evidence. So that the only law – subject, of course, clearly to your Honour’s view about this and perhaps the reasons for judgment and other matters your Honour has referred to – is that there is no privilege here. And so we need to know a lot more.
As previously noted, the objection to the F Psychology subpoena was not resolved on 8 November 2016 and was adjourned for further consideration on 21 December 2016.
In light of the exchanges with counsel on 8 November 2016, on 20 December the Court sent the following email to the parties and to the ICL:
At tomorrow’s hearing of this matter his Honour will invite the parties to address him on the following cases:
·National Roads & Motorists Association v Whitlam (2007) NSWCA 81;
·R v Saleam (1989) 16 NSWLR 14;
·Herrick & Knowles (2014) NSWSC 1223 (at 14).
His Honour will further invite the practitioners to address him on the potential relevance of the following provisions of the Family Law Act and the Family Law Rules:
·Section 60CC(3)(i);
·Section 60D;
·Section 69ZN(3);
·Clauses 1(6)(a) of Part B to Schedule 1 of the family Law Rules.
The orders made on 8 November 2016 noted that the ICL would notify Dr H that the matters raised in her correspondence dated 22 September 2016 would be considered by the Court on 21 December 2016. By letter dated 6 December 2016, the ICL notified Dr H as required. That letter relevantly included the following:
If you wish to maintain your objection to the parents having access to the material produced by [F Psychology], you will need to make arrangements for a representative to be available at Court on 21 December 2016. Please note no legal representative, parent of [sic] myself have been granted leave to inspect this material as yet. (emphasis added)
By email dated 6 December 2016, Dr H replied to the ICL in the following terms:
…my objection regarding this subpoena is from a child protection perspective as it is not in the best interests of the children for their parents to view the file. It is my opinion that if the parents have access to these files it will be detrimental to the relationship and could actually put them in a risk position. That said I am away on annual leave from 16^th of December and as such will be unavailable to attend Court. I sincerely hope that those in a position of decision making uphold the children’s best interests at all times.
At the request of the parties the hearing listed for 21 December 2016 was subsequently vacated.
Following receipt of the father’s written submissions, on 28 February 2017 the ICL wrote to the parties in the following terms:
…
The writer attaches an email received by this office from Dr [H] sent 6 December 2016. Regrettably, the writer is unable to ascertain whether this email has been previously made available to the parties.
On the basis of that email response, the writer would propose writing to Dr [H] to request her to further particularise her objections as they relate specifically to the point raised in her email, namely:
If the parties have access to these files it will be detrimental to the relationship and could actually put them in a risk position.
Please advise whether the parties object to the writer taking this course of action.
By letter dated 1 March 2017 the solicitors for the father objected to the ICL further corresponding with Dr H and stated the reason for their objection as:
…
The email of 6 December 2016 that Ms Smith [a representative for the ICL] sent to Dr [H] made it very clear that if Dr [H] wished to maintain her objection to the parents having access to the material produced then she would need to make arrangements for a representative to be available at Court on 21 December 2016. In other words, the email written to Dr [H] by the ICL made it clear what [F Psychology] were required to do and they failed to do so. …
…
In that letter dated 1 March 2017 addressed to the ICL, the solicitors for the father nonetheless stated:
If however, what we have outlined above is not acceptable to you and, contrary to our position, you decide to pursue the issue with [F Psychology] then in those circumstances we contend that it must be in writing and any response from Dr [H], or from any representative of [F Psychology], should also be in writing and that a copy of this material is made available to the parties and their lawyers. Further, it should be made clear to Dr [H] that unlike her contention as stated in her email of 6 December 2016, the issues she wishes to raise must comprise a statement of the facts that are relevant to her opinion and not simply a stated conclusion or repetition of her concerns. If there exist facts that are relevant to the question of access then the Court must be able to evaluate them, not simply be left with the opinion that Dr [H] has formed about those matters. (emphasis added)
On 7 March 2017 the ICL sent a further letter to Dr H in which the ICL sought the following clarification:
…
The writer seeks further details of the issues which you specifically raise as a concern regarding risk to the children and risk to their relationship with one or both of their parents in the event that leave is granted to inspect the produced material. The writer seeks clarification that the referenced risk is additional to the risk of the loss of the children’s therapeutic relationship with your organisation.
Also on 7 March 2017, F Psychology replied to the ICL:
The children experience their father as intrusive and invalidating. Permitting him to read the file would reinforce the belief that their father doesn’t listen to them and would undermine the therapeutic work that has occurred to restore their view of their father… this may lead to the possibility of the children being unsafe emotionally. (emphasis added)

Appropriateness of the conducting a preliminary inspection of records of therapeutic treatment provided to childrenICL

As noted, by email dated 28 October 2016, the ICL advised the parties that:
…In my opinion the legal representatives and the ICL will require access that [sic] that material prior to 8 November 2016 so we are all in a position to determine what (if any) submissions need to be made in relation to this issue.
That proposed course of action was, in my view, sensible and appropriate. Indeed, as noted above, that proposal was initially agreed to by the solicitors for the father. However, that position was reversed at the hearing on 8 November 2016 with counsel for the mother agreeing to the parties’ legal advisors and the ICL having first access to the documents but the father opposed that course of action.
As noted, in their email to the ICL dated 28 October 2016, the solicitors for the mother indicated that they had no objection to the ICL conducting a first inspection of the material.
By email dated 20 December 2016, the parties were invited to address the Court, at the hearing on 21 December 2016 in respect to the authorities referred to in that email. Those authorities provided examples of where superior courts have recognised that, in the circumstances of the case, it may be appropriate to initially restrict access to documents produced on a subpoena to legal representatives only. The hearing on 21 December 2016 did not take place and no party, including the ICL, has subsequently proposed that course of action be adopted in this case.
Clause 5.2 of the National Legal Aid Guidelines[2] cautions against an ICL becoming a witness in proceedings. However, prior to the hearing on 8 November 2016, both parties had agreed to the ICL conducting a preliminary inspection of the documents and there was no suggestion by either party that the ICL would be called as a witness in the proceedings as a result.
[2] National Legal Aid, Guidelines for Independent Children’s Lawyers (2013), cl 5.2.
While I understand the ICL's concerns about the highly contentious nature of this litigation, the failure by the ICL to undertake a preliminary inspection of the documents, has created a major concern as to whether the interests of the children have been effectively represented in respect to the subpoena issue.
I will subsequently discuss that concern in greater detail below.

Contentions

Queen’s Counsel for the father provided detailed written submissions as to why the parties should have access to the documents produced by F Psychology. Indeed, the mother’s written submissions criticised the father’s submissions as being overly zealous. However, it is clear that the father’s submissions were prepared on the basis of attempting to anticipate any objections to the disclosure of the subpoenaed documents that may possibly be raised by the mother and the ICL.
In that respect, there is some validity to the objection, expressed by Queen’s Counsel for the father, that the father was required to provide written submissions before being made aware of the precise nature of the objection to the inspection of documents by the mother and the ICL. That procedure was, however, one that was proposed by the parties.
At the risk of failing to give appropriate recognition to the detailed submissions filed on the behalf of the father, in these Reasons I will address only those matters raised by the legal representatives for the mother and the ICL as justifying their objection to the parties accessing the documents produced by F Psychology. This will involve first considering the submissions of the mother and the ICL even though they were filed after the father’s written submissions.

Submissions of the mother

The mother, in her written submissions said that “at least at this time, the Court ought not grant leave to inspect the material in light of the serious concerns raised by the relevant experts.” In that respect, reference was made to the report of Dr E dated 24 September 2016, the letter from Dr H dated 22 September 2016, and to Dr H’s subsequent email dated 6 December 2016. Relevant passages from the Report and the written correspondence have been set out above.
Specifically, it was argued that “where both the child’s psychologist and the single expert psychiatrist have raised concerns as to the risk to the children in the event that the material is made available for inspection, the Court ought not accede to the application for inspection at the present time.”
It was submitted on behalf of the mother that it is arguable that the Court can apply a public interest immunity to restrict the parties’ access to the materials produced by F Psychology. However, it was submitted that the matter can be comfortably dealt with within the Court’s discretion which is to be exercised in the context of Division 12A of the Act. That Division, as I will discuss, sets out the principles the Court must apply in determining parenting proceedings. Specifically, the mother relied upon the principles 1, 2 and 5.
The mother further argued that the parties should not be granted leave to inspect the subpoenaed material at this time on the basis of relevance. In that respect it was submitted that:
Whilst the husband seeks to develop at some length the issues to which he would contend such material may go, such contentions are to be properly understood as being speculative at this time. That which Dr [E] might ultimately opine, and the basis for the same, is simply not known. That which each of the parties are to seek by way of parenting orders, and the position adopted by the ICL, is similarly not known at this time. That the children have, on a consensual basis, been in therapy with [F Psychology] for some time now is not in issue – the relevance of the content of that therapy to the issues ultimately to be determined by the court is in issue.

Submissions by the ICL

The ICL conceded that “technically” this may not be considered a formal objection pursuant to rule 15.31(b) of the Family Law Rules 2004 (Cth) (“the Rules”). The ICL further conceded that while F Psychology have been invited to attend to express their concerns to the Court they have declined that invitation.
Nevertheless, the ICL noted that both the Court and the parties have proceeded in the matter as if a formal objection had been made to the subpoena.
The ICL also referred to the relevant correspondence identified by the mother and, in addition, referred to the email received by the ICL from F Psychology, dated 7 March, 2017, to which I have referred, and which cautioned that the parents accessing the documentation "may lead to the possibility of the children being unsafe emotionally".
The ICL submitted that the objection requires the Court to balance the following competing principles:
1.the benefit of the Court having the relevant material available to the Court in the determination of parenting issues (and the best interests of the children), and
2.the potential for the provision of the material to negatively impact on the best interests of the children.
The ICL submitted that the therapeutic relationship between the children and F Psychology is acknowledged by Dr E in his report “as being a significant therapeutic relationship for the children” and that relationship was anticipated and agreed by the parties.
It was submitted by the ICL that, on the basis of the issues raised by Dr H, the Court would conclude that there would be a significant impact on the children’s therapeutic relationship with F Psychology as was discussed in the case of Leroux & Leroux [2016] FamCA 255 where Benjamin J, at [9] found:
I am concerned, having regard to the level of litigation that these children –and there is clear evidence that they are struggling with this process, and I note the comments made in earlier judgments by me and earlier reasons by me – that they can have access to a therapist and that the Court proceedings ought not significantly impact on the needs of these children. I am satisfied that the production of those documents would, in my view, and on the evidence before me at the present time, significantly impact on the therapeutic treatment of these children.
It was further submitted that the issue as to whether the currently established therapeutic relationship should be maintained is an issue to be determined at final hearing in which the evidence of Dr E will be tested by cross-examination. It was submitted that “the continuation or otherwise of this established therapeutic relationship should not be inadvertently determined by virtue of these interlocutory proceedings.”
The ICL also made reference to the principles set out in Division 12A of Part VII of the Act and, specifically, Principles 1 and 3 as set out in s 69ZN which, it was submitted, required the Court to conduct the proceedings “in a way which ensures the children are, wherever possible, safeguarded against negative impact.”
In that respect it was noted that the ICL:
does not submit that the court would be satisfied on the evidence available, that the concerns raised by Dr [H] constitute a serious and significant risk to the physical safety of any of the children. Dr [H’s] objections instead appear to relate, it is submitted, to the risk of destroying the children’s established therapeutic relationship and potentially damaging the relationship between the children and (specifically) their Father.
In summary, the ICL argued that, in order to protect the children’s therapeutic relationship with F Psychology, the Court should not grant the parties leave to inspect the material produced even though that “may result in relevant material not being available to the Court for the determination of the best interests issues on a final basis.”

Submissions of the father

The written submissions filed on the behalf of the father were extensive. They consisted of an initial submission of 13 pages and 64 paragraphs which were accompanied by an Annexure concerning “Background Facts” which was 29 pages long. That Annexure was accompanied by 109 pages of additional annexure’s. The husband’s submissions in reply consisted of a further 52 paragraphs set out in 9 pages together with an additional 7 pages of annexures.
As noted, I will address those parts of the submissions that relate to the objections raised by the mother and the ICL.
It was submitted that it is relevant in this matter that:
·There is no objection by F Psychology, the mother, the ICL or any other interested person, to the production of the documents.
·In fact, the documents were produced to the Court on 22 September 2016.
·There is no application before the Court to set aside the subpoena.

In those circumstances, it was submitted that this matter relates to the second step, as discussed by Moffitt P in National Employers’ Mutual General Association v Waind and Hill,[3] which concerns the granting of leave by the Court to inspect documents that have been produced to the Court pursuant to a subpoena.
[3] [1978] 1 NSWLR 372 at 385.
On the basis of Waindt and Hill,[4] and several additional authorities that have applied the reasoning of Moffitt P in that case, it was submitted that “[t]he critical question in relation to the exercise of discretion in the second step is whether the documents have apparent relevance to the issues.”
[4]National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372 at 385.
In that context, it was submitted that the question of the admissibility of the material has not yet arisen and will only arise if, during the trial, a party seeks to tender the material into evidence. It was therefore argued that “the current issue has nothing to do with the admissibility of the material” and accordingly it is not necessary for the Court to make any determination as to whether the “admissibility of the disputed material would be likely to significantly impact the established therapeutic treatment of the children.”
In respect to the question of relevance, at paragraphs [25] and [26], it was submitted as follows:
25. In the circumstances of this case, as between the parties and the ICL, there is no issue that the documents have apparent relevance to the issues in this case. There is a legitimate forensic purpose. It is sufficient to observe that the attached background reveals that the wife’s solicitors sought that the documents be subpoenaed and that the ICL made the application for the subpoena to issue.
26. It is significant that [F Psychology] have chosen not to prosecute their request that the inspection be limited to Dr [E] and the parties’ lawyers. The application for permission to inspect the documents was listed for hearing on 21 December 2016 and [F Psychology] chose not to participate. Further, no written notice of objection, and the grounds for any objection, has been given by the wife or the ICL. In those circumstances permission to inspect the documents should be granted.
It was further submitted that F Psychology have had “extraordinary involvement” in the matter and that “the relationship of the children with the husband has significantly deteriorated since the involvement of [F Psychology].”
In that respect, reference was made to the material set out at Annexure “A” to the father’s written submissions which, it was submitted established the following:
·[S]ince July 2015 [F Psychology], and in particular Dr [H], have been enmeshed in the proceedings;
·the recommendations of Dr [E] were made by Dr [H] well before the third report of Dr [E];
·without any notice being given to the husband or the ICL, and contrary to what the wife also contended was the purpose or main goal of the role of [F Psychology], the focus of the role of [F Psychology] in consulting with the children significantly changed;
·the wife’s evidence in chief is replete with the evidence of the role of Dr [H] in the proceedings;
·the relationship of the children with the husband has significantly deteriorated since the involvement of [F Psychology];
·in preparing his third report Dr [E] had extensive consultations with Dr [H];
·in his third report Dr [E] has relied significantly on what he was told by Dr [H]. (references omitted)
It was also submitted that, “in the absence of evidence from Dr [H] there will be extensive objections to the evidence of Dr [E] in his third report” and further;
Given the role that Dr [H] and [F Psychology] have assumed, particularly in relation to the opinions of Dr [E] in his third report, access to the documents produced is necessary to enable a decision to be made as to what is in the best interests of these children.
In respect to the application of Division 12A of Part VII of the Act, it was submitted that the Division is intended to authorise the Court to control what material is put before the Court in order to make a decision as to what is in a child’s best interests and “does not obviate in any way the requirement for fair hearing.”
The father’s submissions, in respect to Division 12A, were further developed in the father’s written submissions in reply. In those submissions, reference was made to the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 which, when enacted in 2006, introduced Division 12A of Part VII into the Act. The relevant passages referred to by the father related to the first and third principles set out in s 69ZN(3) were as follows:
[The first principle]is intended to ensure that the proceedings are focussed on the child. This means that the court must consider the child’s needs and the impact that the conduct of the proceedings may have on him/her. In particular the court must consider the likely stress on the child of the conflict between the parents that is created by the proceedings and seek to minimise this. The court may, for example, consider making orders that the child attend family counselling to assist the child to understand the court’s orders or the trial process. The court may also, when setting hearing dates, consider the stress caused to the child by lengthy times between hearing dates and seek to minimise this impact where appropriate.
…
[The third principle] is that the proceedings must be conducted in a way that will safeguard the child or children concerned against family violence, child abuse and child neglect; and safeguard the parties against family violence. This implements recommendation 36 of the LACA Report and gives emphasis to the protection of the child in less adversarial proceedings. The more active case management approach in Division 12A should ensure that allegations of violence and abuse are dealt with at an earlier stage in the court process. It will also ensure that judicial officers are better able to ensure that appropriate evidence is before them. This will assist courts to better address issues of child abuse and family violence in proceedings. Section 69ZN(5) was amended by the Family Law Legislation Amendment (Family Violence and Other Measurements) Act 2011 (Cth).
Reference was also made to the decision of Berman J in Crawford & Sisinis and Anor[5] where his Honour observed, “[i]f s 69ZN(3) is applicable, there needs to be evidence as to the potential effect on the child if the information, the subject of the objection, is released”. It was submitted that there is no such evidence in the present case concerning the subpoena to F Psychology.
[5] [2014] FamCA 912.
In the father’s submissions in reply it was further argued that the involvement of Dr H in apparently making two mandatory notifications to the Department of Family and Community Services concerning allegations made by the children, meant that it was important that the father has the opportunity “to have access to the records of Dr [H] and the “other practitioners” assuming that they are also from [F Psychology]”.
Finally, it was submitted that the fact that Division 12A authorises the Court to take a “more judicial control” does not mean that “there is any lessening of the obligation to ensure a fair trial and to afford procedural fairness to each party.” In that respect, reference was made to the decision of the Full Court in Farmer & Rogers[6].
[6] [2010] FamCAFC 253 at [221]-[229].
Reference was also made to the joint reasons of Barwick CJ, Gibbs, Stephen and Mason JJ in The Queen v Watson; Ex parte Armstrong,[7] where it was observed:
The judge called upon to decide proceedings of that kind is not entitled to do what has been described as “palm tree justice”. No doubt he is given a wide discretion, but he must exercise it in accordance with legal principles, including the principles which the Act itself lays down (in such sections as ss. 43, 72, 75 and 79, whichever may be applicable). He must also follow the procedure provided by the law. The provisions of s. 97(3) of the Act, which require him to proceed without undue formality, do not authorize him to convert proceedings between parties into an inquiry which he conducts as he chooses. The provisions of reg. 108(2) which enable the court “with the consent of the parties to the proceedings” to dispense with such procedures and formalities as it thinks fit, show that without such consent the Court has no such dispensing power. A judge can neither deprive a party of the right to present a proper case nor absolve a party who bears the onus of proof from the necessity of discharging it. These remarks are not intended to fetter a judge of the Family Court in the exercise of a proper discretion or to insist upon the observance of unnecessary formality; they are designed to make it clear that a judge of the Family Court exercises judicial power and must discharge his duty judicially.
[7] (1976) 136 CLR 248 at pages 257-259.

Relevant legislation and instruments

The following legislative provisions and instruments are relevant to the consideration of this matter.
Section 43(1)(c) of the Act provides that “[t]he Family Court shall, in the exercise of its jurisdiction under this Act, have regard to:
…
(c)the need to protect the rights of children and to promote their welfare;
Section 60B sets out the objects and principles underlying Part VII of the Act. That Part of the Act empowers the Court to make orders concerning children. Subsection 60B(4) provides:
(4)An additional object of this Part is to give effect to the Convention on the Rights of the Child done at New York on 20 November 1989 (“the Convention”).
Those provisions of the Convention which are relevant to the consideration of this matter are:
Clause 1 of Article 3
1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. (emphasis added)
Article 12
1. States Parties shall assure to the child who is capable of forming his or her own views the right to express those views freely in all matters affecting the child, the views of the child being given due weight in accordance with the age and maturity of the child.
2. For this purpose, the child shall in particular be provided the opportunity to be heard in any judicial and administrative proceedings affecting the child, either directly, or through a representative or an appropriate body, in a manner consistent with the procedural rules of national law.
Article 16
1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, or correspondence, nor to unlawful attacks on his or her honour and reputation.
2. The child has the right to the protection of the law against such interference or attacks.
Section 69ZN of the Act provides:
Principles for conducting child‑related proceedings
Application of the principles
(1)      The court must give effect to the principles in this section:
(a)      in performing duties and exercising powers (whether under this Division or otherwise) in relation to child‑related proceedings; and
(b)in making other decisions about the conduct of child‑related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2)      Regard is to be had to the principles in interpreting this Division.
Principle 1
(3)      The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4)      The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5)      The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a)the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b)      the parties to the proceedings against family violence.
Principle 4
(6)      The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7)      The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible. (emphasis added)
The Rules that have relevance to this matter are as follows:
15.16 Interpretation
(1) In this Part:
interested person, in relation to a subpoena, means a person who has a sufficient interest in the subpoena.
issuing party means the party for whom a subpoena is issued.
named person means a person required by a subpoena to produce a document or give evidence.
subpoena for production means a subpoena mentioned in paragraph 15.17(1)(a).
15.22 Service
(1) The issuing party for a subpoena must serve the named person, in accordance with subrule (1A), with:
(a) the subpoena; and
(b) the brochure, approved by the Principal Registrar, containing information about subpoenas.
…
(2) The issuing party for a subpoena must serve a copy of the subpoena, in accordance with subrule (2A), on:
(a) each other party; and
(b) each interested person in relation to the subpoena; and
(c) the independent children’s lawyer (if any).
…
(4) A subpoena must not be served on a child without the court’s permission.
15.26 Objection to subpoena
(1) If:
(a) a subpoena is issued in relation to proceedings; and
(b) the named person or an interested person in relation to the subpoena, or an independent children’s lawyer in the proceedings:
(i) seeks an order that the subpoena be set aside in whole or in part; or
(ii) seeks any other relief in relation to the subpoena;
the person must, before the day on which attendance or production in accordance with the subpoena is required, apply to the court, in writing, for the relevant order.
(2) If a person makes an application under subrule (1), the subpoena must be referred to the court for the hearing and determination of the application.
Note: An application to set aside a subpoena issued in an appeal will be listed for determination before the court hearing the appeal.
(3) The court may compel a person to produce a document to the court for the purpose of determining an application under subrule (1).
15.30 Right to inspect and copy documents
(1) This rule applies if:
(a) the court issues a subpoena for production in relation to proceedings; and
(b) at least 10 days before the day (the production day) on which production in accordance with the subpoena is required, the issuing party:
(i) serves the named person with the subpoena and the brochure in accordance with subrule 15.22(1); and
(ii) serves each person mentioned in subrule 15.22(2) with a copy of the subpoena in accordance with that subrule; and
(c) no objection under rule 15.31 to production of a document required in accordance with the subpoena is made by the production day; and
(d) the named person complies with the subpoena; and
(e) on or after the production day, the issuing party files a notice of request to inspect in an approved form.
(2) Each party to the proceedings, and any independent children’s lawyer in the proceedings, may:
(a) inspect a document produced in accordance with the subpoena; and
(b) take copies of a document (other than a child welfare record, criminal record, medical record or police record) produced in accordance with the subpoena.
(3) Subrule (2) has effect subject to paragraph 15.31(4)(c) (inspection of medical records).
(4) Unless the court orders otherwise, an inspection under paragraph (2)(a):
(a) must be by appointment; and
(b) may be made without an order of the court.
15.31 Objections relating to production of documents
Objection to producing, or to inspection or copying of, a document
(1) Subrule (2) applies if a subpoena for production is issued in relation to proceedings, and:
(a) the named person objects to producing a document in accordance with the subpoena; or
(b) any of the following objects to the inspection or copying of a document identified in the subpoena:
(i) the named person;
(ii) an interested person in relation to the subpoena;
(iii) another party to the proceedings;
(iv) any independent children’s lawyer in the proceedings.
(2) The person or party (the objector) must, before the day on which production in accordance with the subpoena is required, give written notice of the objection and the grounds for the objection, to:
(a) the Registry Manager; and
(b) if the objector is not the named person—the named person; and
(c) each party, or other party, to the proceedings; and
(d) each independent children’s lawyer, or each other independent children’s lawyer, in the proceedings.
Objection relating to inspection or copying of medical records
(3) If a subpoena for production requires the production of a person’s medical records, the person may, before the day (the production day) on which production in accordance with the subpoena is required, notify the Registry Manager in writing that the person wishes to inspect the medical records for the purpose of determining whether to object to the inspection or copying of the records.
(4) If a person (the potential objector) gives notice under subrule (3):
(a) the potential objector may inspect the medical records; and
(b) if the potential objector wishes to object to the inspection or copying of the records—the potential objector must, within 7 days of the production day, give written notice of the objection and the grounds for the objection, to the Registry Manager; and
(c) unless the court orders otherwise, no other person may inspect the medical records until the later of:
(i) 7 days after the production day; and
(ii) if the potential objector makes an objection under paragraph (b)—the end of the hearing and determination of the objection.
Referral of subpoena to the court
(5) If a person makes an objection under subrule (2) or paragraph (4)(b), the subpoena must be referred to the court for the hearing and determination of the objection.
(6) The court may compel a person to produce a document to the court for the purpose of ruling on an objection under subrule (2) or paragraph (4)(b).
15.32 Court permission to inspect documents
A person may not inspect or copy a document produced in compliance with a subpoena for production, but not yet admitted into evidence, unless:
(a) rule 15.30 applies; or
(b) the court gives permission.

Consideration

While the submissions of the mother noted the possible application of a public interest privilege in respect to the therapeutic records that submission was not developed. The focus of the mother's submissions was, instead, on the appropriate exercise of discretion in the context of Division 12A of the Act.
The rationale for the existence of a public interest privilege in respect to clinical notes concerning psychological counselling, in the context of family law proceedings was described by the Supreme Court of New Jersey in the following terms:
Courts should be mindful that, although [the psychologist-patient privilege] is modelled on the attorney-client privilege, the public policy behind the psychologist-patient privilege is in some respects even more compelling. Like the attorney-client privilege, the psychologist-patient privilege serves the functional purpose of enabling a relationship that ultimately redounds to the good of all parties and the public. The psychologist-patient privilege further serves to protect an individual's privacy interest in communications that will frequently be even more personal, potentially embarrassing, and more often readily misconstrued than those between attorney and client. Made public and taken out of context, the disclosure of notes from therapy sessions could have devastating personal consequences for the patient and his or her family, … Especially in the context of matrimonial litigation, the value of the therapist-patient relationship and of the patient's privacy is intertwined with one of the most important concerns of the courts-the safety and well-being of children and families. Therefore, only in the most compelling circumstances should the courts permit the privilege to be pierced.[8]
[8] Kinsella v Kinsella 696 A.2d 556, 584 (NJ, 1997).

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.
I note that F Psychology produced documents to the Court on or about 22 September 2016. I further note that as at 28 October 2016 the ICL had not filed a Notice of Request to Inspect in respect to those documents, pursuant to rule 15.30 of the Rules, and there is no evidence before the Court that any such application has been made by the mother or the father.
Accordingly, this matter is to be determined in accordance with the discretion conferred on the Court pursuant to r 15.32(b) of the Rules which I have set out above. It is to be noted that r 15.32(b) provides that “a person may not inspect or copy a document produced in compliance with a subpoena for production … unless the court gives permission”. (emphasis added) It is apparent that there is no presumed right of inspection, the party seeking to inspect documents, pursuant to r 15.32(b), must satisfy the Court that inspection should be permitted.
In this matter it was argued, on behalf of the father, that the critical question for the Court to consider in determining whether leave should be granted to inspect the material produced by F Psychology is “whether the documents have apparent relevance to the issues”.
The issue as to whether the documents produced have apparent relevance to the issues in the proceedings is clearly a relevant consideration to the proper exercise of the Court’s discretion as to whether permission should be granted pursuant to rule 15.32. It is not, however, the only relevant consideration. The discretion must be exercised in the context of the Act and the Rules.
For reasons that I will explain, in this matter I have considered the following to be relevant considerations to the proper exercise of my discretion pursuant to r 15.32:
·The apparent relevance of the documents themselves.
·The impact of the disclosure of the documents on the children’s privacy.
·The need to ensure, as far as is reasonably practicable, that all relevant material is before the Court when considering what is in the children’s best interests.
·The impact that an order granting leave to inspect the F Psychology subpoenaed material would have on the welfare of the children including;
othe possible impact on the children's therapeutic relationship with therapists at F Psychology; and
othe possible risk to the children's physical and psychological well-being.
As noted, s 43 of the Act provides that, in exercising jurisdiction under the Act, the Court is required to consider “the need to protect the rights of children and to promote their welfare.”
Article 16 of the Convention confirms that children have a right not to be subjected to arbitrary or unlawful interference with their privacy. It could not be said that the subpoena to F Psychology unlawfully interferes with the children's privacy. Nonetheless, the fact that the subpoena does impact upon the children's privacy is a relevant consideration.
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. In that respect, in R v Barton and Ors [1981] 2 NSWLR 414 at 419, Cantor J said:
It seems to me that there is involved within this field the resolution by the court of competing interests. To require a witness to produce to the court his documents in proceedings in which he is not a party and in which he has no interest must involve an invasion of his private rights including his right to privacy and his right not to be required to busy himself seeking, identifying, bringing together and producing his documents to the court.
The other right which seems to me to be involved is the right of a party to litigation to obtain access to documents, even where they are in the possession of a stranger, in order to further the ends of justice in those proceedings so that he may advance his case on all issues in the case. These respective rights of the stranger and the litigant will generally conflict.
In many instances a mere consideration of the nature of perusal of documents in such a subpoena will disclose that they have or may well have relevance to the issues in the litigation. On the other hand consideration of the nature of the documents sought in such a subpoena may indicate with equal clarity that on the face of the subpoena the documents do not and cannot bear any relevance to the issues in the litigation.
There is a significant area between these two extremes which is the area in which, it would appear, there is no simple guideline to follow. What is required, as I have stated, is a balancing of the competing and generally conflicting interests of the party to the proceedings and the stranger to the proceedings.
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.[9] (emphasis added)
[9] See also In the marriage of Blann & Blann (1983) FLC 91-322.
In this matter I am satisfied that it is likely there will be documents among those produced that are relevant to the parenting issues that are in dispute before the Court. In that respect, I note that, prior to the preparation of his third report, Dr E conferred with Dr H. The parties specifically contemplated that the clinical notes of F Psychology would also be provided to Dr E as part of that communication.
However, in the absence of the parties or the ICL having inspected the documents produced by F Psychology, the Court is without assistance as to the nature of the documents. In those circumstances it cannot reasonably be assumed that the totality of the information contained in the F Psychology subpoenaed material will be relevant to the proceedings. In that respect, for example, I note that one of the complaints of the father relates to the advice received by him that the therapeutic sessions for B, “were not necessarily aimed at her relationship with [the father] and that had not been a focus for a very long time.” It may well be that a matter, or matters, in respect to which B, or the other children, have received counselling have no relevance to these proceedings.
It is unsatisfactory that the Court is, currently, without sufficient information to make that determination and I will subsequently discuss how that situation should be rectified.

The need to protect the rights of children and to promote their welfare and the Application of Division 12A of Part VII of the Act

As noted, s 43 of the Act also requires the Court, in exercising its jurisdiction under the Act, to have regard to “the need to... promote [the children's] welfare.” Further, s 69ZN sets out the principles that the Court must apply in exercising its powers in child-related proceedings. In my view, the most relevant principle to apply in respect to these proceedings is principle 1 which, as noted, relevantly provides that:
…the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Division 12A is not empowering. Rather, it sets out the principles that the Court is required to apply in exercising jurisdiction in respect to parenting matters. In my view those principles apply in the context of interim proceedings as much as at final hearing. Specifically, the principles apply to the exercise of discretion pursuant to rule 15.32 in respect to proceedings involving children.
This is made clear in the following extract from the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 which provides:
The amendments in Schedule 3 provide for a less adversarial approach to be adopted in all child-related proceedings under the Act. This approach relies on active management by judicial officers of matters and ensures that proceedings are managed in a way that considers the impact of the proceedings themselves (not just the outcome of the proceedings) on the child. (emphasis added)
It would be perverse to adopt a construction of s 69ZN that results in an outcome where the Court, in making final parenting orders, is required, to consider the potential impact of those orders on a child’s physical and psychological well-being but the Court is not required to do so in respect to interim proceedings.
There is, in my view, no basis to restrict the clear and unambiguous wording of s 69ZN only to circumstances where the Court takes steps to address the adverse impact that orders (including interim orders) may have on a child such as, by making orders for the children to "attend family counselling to assist the child to understand the court’s orders or the trial process". It is equally important for the Court to consider that the operation of an order, including an order made in interim proceedings, may be causative of an adverse impact on the child.
In my view, the correct approach to the construction of Division 12A is that adumbrated by Berman J in Crawford and Sisinis,[10] where his Honour said:
The consideration of a subpoena is not to be determined by reference to s 60CA namely, that a Court must regard the best interests of the child as the paramount consideration. That is not to suggest that the interests of the child play no part. Section 69ZN sets out the principles for conducting child related proceedings and it is clear from the first principle as set out in s 69ZN (3) that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
I have also had regard to the general proposition that weight can be given to the welfare and the interests of the child which may impact upon the manner in which rules of evidence are utilised.
Consideration however of the impact of the conduct of the proceedings on the child is not an abstract concept. If s 69ZN (3) is applicable, there needs to be evidence as to the potential effect on the child if the information the subject of the objection is released. In this case no such evidence has been presented.
[10] Supra at [60].
While his Honour focused on the application of s 69ZN(3), his reasoning is also, in my view, entirely consistent with the application of s 43 of the Act.
The difficulty that I have in this matter is the lack of assistance that I have received in determining the nature of the documents produced by F Psychology and the potential impact that release of the documents may have on the children.
This is in the context where I share the concerns expressed by the father that the letter sent by F Psychology dated 22 September 2016, which accompanied the documents produced by that organisation, may have been a pro forma response. In that respect, I have earlier highlighted the references in that letter to "the individual" and "the client" rather than referring to the children.
That matter could have been clarified by either the ICL or the parties’ legal representatives having first access to the documents. It could have also been clarified by Dr H attending Court when the matter was listed for hearing on 21 December 2016 to clarify the nature of her concerns. Dr H could have also clarified her concerns by setting out, in her subsequent correspondence, the factual basis of her concerns as opposed to simply stating her concerns.
In that respect, it was entirely reasonable that, in their letter dated 1 March 2017, the solicitors for the father indicated that, in the event of the ICL seeking any such additional clarification from Dr H, “the issues she wishe[d] to raise must comprise a statement of the facts that are relevant to her opinion and not simply a stated conclusion or repetition of her concerns.” (emphasis added)
Regrettably, the nature of the emails sent by Dr H, including her email of 7 March 2017, do not comprise a statement of the facts that form the basis of her conclusion and opinion that the documents should not be made available to the parents. I am therefore left in a position where I am unable to evaluate the validity of her conclusion and opinion. Nor am I able to determine, the extent of the “possibility” of the children being unsafe emotionally to which Dr H refers in her email of 7 March 2017, nor am I able to determine what Dr H means by the expression “unsafe emotionally".
As was the case in Crawford and Sisinis (supra), I am left in a position where the concerns that have been expressed regarding the welfare of the children are without an evidentiary basis. In those circumstances, the expression of concerns, without a supporting evidentiary basis, do not displace the public interest of the Court having before it all relevant evidence that will assist the Court in determining what final orders are in the children’s best interests.
Accordingly, subject to the concerns that I have in respect to the interests of the children being properly represented, I will make orders facilitating the parties having access to the material produced by F Psychology which is relevant to the proceedings.

Representation of the children's interests

The clinical notes of F Psychology relate to therapeutic psychological treatment provided by that service to the children. The children are clearly impacted by the production of those documents. They are therefore “interested person[s]” for the purpose of the Rules. Their rights pursuant to the Rules are not diminished by their minority.
It is a fundamental part of the judicial process that a person who may be adversely impacted by an order of a court has a right to have their interests represented before any such order is made. In Child Support Registrar & Nixon,[11] the Full Court said:
…given the emphasis placed by the High Court in both Taylor and Allesch v Maunz on the right of a party to be heard when an order is to be made affecting that party, we accept that where a party has not been given notice of the proceedings in which the order was made, and thus not been heard on the making of the order, that that is a matter which should be given very significant weight in the exercise of the discretion to set aside the order. As his Honour did not refer to the fact that the order had been made without notice to the Registrar, it has to be assumed that he gave this fact no weight, and thus his discretion must be regarded as having miscarried on account of his failure to have regard to this important matter.
We add that we do not accept, as we understood to be submitted by the respondents, that a distinction should be drawn between a party to the proceedings as opposed to a third party. (references omitted)(emphasis added)
[11] [2007] FamCA 32 at [47] - [48]; Official Trustee in Bankruptcy v Donovan and Donovan and Stevens (1996) FLC 92-703.
As interested parties, the children were entitled to have their interests properly represented. In my view this has not occurred because no one on their behalf has conducted a first inspection of the documents produced by F Psychology to identify issues of relevance and risk.
I therefore propose making orders to facilitate the ICL having first access to the documents produced by F Psychology and to copy those documents and to redact from those copies those parts of the documents, if any, that do not have apparent relevance to the parenting proceedings. Subject to identifying an issue of unacceptable risk to the children, the orders will provide for the ICL to provide such redacted material to Dr E and to the parties.
To enable the parties’ legal representatives to make an assessment as to whether the ICL has acted appropriately in redacting the material from the documents produced I propose granting to the parties’ legal representatives, as opposed to the parties, a right to inspect but not copy, the original documentation produced to the Court by F Psychology.
If either party, on advice, has an objection to the redactions, if any, made by the ICL they will have liberty to apply to the Court in respect to that matter. Accordingly while the redactions, if any, will be made by the ICL based on the ICL’s assessment of apparent relevance, in the event of dispute, the ultimate determination of the issue of apparent relevance will be made by the Court.
If the ICL is unable or unwilling to act in accordance with such orders or if, upon inspection of the documents the ICL is of the view that making the documents available to the parties would give rise to an unacceptable risk of the children suffering physical or psychological harm, then the matter will need to be revisited and the orders will provide for a mechanism for the matter to be relisted. Orders
For all of the above reasons I make the orders as set out at the commencement of these Reasons for Judgment.

I certify that the preceding one hundred and twenty-eight (128) paragraphs are a true copy of the reasons for judgment of the Honourable Justice McClelland delivered on 1 May 2017.

Associate:

Date: 1 May 2017