Smirnov & Turova
[2009] FMCAfam 1083
•16 October 2009
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| SMIRNOV & TUROVA | [2009] FMCAfam 1083 |
| FAMILY LAW – Practice and procedure – parenting proceedings – subpoena issued to counselling organisation – counselling organisation objecting to inspection of material forming subject of subpoena, but not objecting to issue of subpoena – where counsellor spoke with and conveyed information to mother's legal representative after completion of counselling process – where court referred parties for reportable counselling, and parties understood that they were involved in reportable counselling – where counselling organisation asserts that, irrespective of court's intention and the parties' knowledge and belief, counselling was privileged and confidential – whether inspection of material forming subject of subpoena should be permitted – whether counsellor who spoke with mother's legal representative should be authorised, permitted or compelled to give evidence regarding matters conveyed during discussion – whether inspection of material or disclosure of information authorised or permitted having regard to ss.10D & 10E of the Family Law Act 1975 (Cth). |
| Family Law Act 1975(Cth) |
| Centacare Central Queensland and Downing v G & K; Attorney General of the Commonwealth (Intervener) (1998) 23 Fam LR 476 Northern Territory of Australia v GPAO (1999) 24 Fam LR 253 Relationships Australia v Pasternak (1996) 20 Fam LR 604 Relationships Australia (Queensland) v M (2006) 37 Fam LR 12 Trapp v Vonne (2009) 41 Fam LR 471 |
| Applicant: | MR SMIRNOV |
| Respondent: | MS TUROVA |
| Subpoenaed Party: | CENTACARE |
| File Number: | MLC 10410 of 2007 |
| Judgment of: | Walters FM |
| Hearing date: | 18 September 2009 |
| Date of Last Submission: | 18 September 2009 |
| Delivered at: | Melbourne |
| Delivered on: | 16 October 2009 |
REPRESENTATION
| Counsel for the Applicant: | Mr Combes |
| Solicitors for the Applicant: | Spencer Law Partners |
| Counsel for the Respondent: | Ms Hannan |
| Solicitors for the Respondent: | Womens Legal Service Victoria |
| Counsel for the Independent Children’s Lawyer: | Ms Agresta |
| Solicitors for the Independent Children’s Lawyer: | David Stagg Tonkin & Co |
| Counsel for the Subpoenaed Party: | Ms Stoikovska |
| Solicitors for the Subpoenaed Party: | Moores Legal |
ORDERS
Subject to paragraph 2 below, all parties have liberty to inspect the file produced to the Court by the Geelong Family Relationship Centre.
The order in paragraph 1 above be stayed until further order.
The father attend upon Dr K, psychiatrist for the purpose of a psychiatric assessment and report, and the father be responsible for the costs of the said assessment and report in the sum of $1,300.00 (including GST).
The said psychiatric assessment and report be released to the parties by no later than 4.00 p.m. on 14 December 2009.
The independent children’s lawyer do provide Dr K with copies of:
(a)all previous family reports; and
(b)any subpoenaed material.
All parties do file and serve a Minute of Interim and Final Orders Sought by not later than 4.00 p.m. on 18 December 2009.
Pursuant to s.62G(2) of the Family Law Act1975, the parties and the child [X] born in 2000 attend upon Ms Jay Manya, the Family Consultant (“the Family Consultant”) nominated by the Dispute Resolution Coordinator of the Federal Magistrates Court of Australia, for the purposes of the preparation of an updated Family Report to be given to the Court prior to 22 January 2010, such Family Report to deal with the following matters:
(a)any views expressed by the said child and any factors (such as the said child’s maturity or level of understanding) that would affect the weight that the court should place on those views);
(b)the matters set out in ss.60CC, 61DA and 65DA of the Family Law Act 1975; and
(c)any other matters that the Family Consultant considers important to the welfare or best interests of the said child.
The parties do comply with all reasonable directions as to attendance upon the Consultant as and when required by the Consultant.
Within 7 days of being notified of the Consultant, the solicitor for each of the parties do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by or on behalf of his/her client in the within proceedings;
(b)all relevant affidavits filed by or on behalf of his/her client in the within proceedings; and
(c)any intervention or restraining orders currently in force.
If a party is not represented by a solicitor, then within 7 days of being notified of the Consultant that party do deliver or cause to be delivered to the Consultant copies of the following documents:
(a)all relevant applications and responses filed by him/her, or filed on his/her behalf, in the within proceedings;
(b)all relevant affidavits filed by him/her, or filed on his/her behalf, in the within proceedings; and
(c)any intervention or restraining orders currently in force.
The matter otherwise be adjourned to:
(a)21 December 2009 at 9.45 a.m. in the Duty List; and
(b)15 February 2010 at 10.00 a.m. for final hearing, with absolute priority (with an estimated hearing time of 4-5 days).
In the event of any applicable filing, setting down, mediation or enforcement fee or fees (“the Fees”) not having been waived, the party responsible for the payment of the Fees or any of them do pay or cause to be paid such of the Fees as shall be payable by that party in accordance with, and within the time specified in, the Federal Magistrates Court Regulations.
The father do file and serve all further affidavits and other material to be relied upon by not later than 28 days prior to the trial date.
The mother do file and serve all further affidavits and other material to be relied upon by not later than 14 days prior to the trial date.
The independent children’s lawyer do file and serve all further affidavits and other material to be relied upon by not later than 7 days prior to the trial date.
All parties do file and serve an Outline of Case document in an appropriate form by not later than 72 hours prior to the trial date.
AND THE COURT NOTES THAT:
The order in paragraph 1 above has been stayed on the application of Ms Stoikovska, Counsel for the Geelong Family Relationship Centre on the basis of Ms Stoikovska’s advice to the Court that the Geelong Family Relationship Centre intends to appeal the said order.
In the event of non compliance by any party with the orders, directions, Rules or Regulations of this Court relating to:
(a)the filing of documents;
(b)the payment of any applicable filing, setting down, mediation or enforcement fee or fees; and/or
(c)any other procedural issues,
the trial date may be vacated and the Court may direct that a further date not be fixed until all parties have complied with the said orders, directions, Rules and Regulations.
To the extent that it is or may be practicable to do so, a compliance check is to be carried out by an Associate or Deputy Associate of the trial Federal Magistrate, or by another appropriate court officer, shortly prior to the final hearing date.
Pursuant to ss.65DA(2) & 62B of the Family Law Act1975 the particulars of the obligations these orders create and the particulars of the consequences that may follow if a person contravenes these orders are set out in the Attachment and these particulars are included in these orders.
IT IS NOTED that publication of this judgment under the pseudonym Smirnov & Turova is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT MELBOURNE |
MLC 10410 of 2007
| MR SMIRNOV |
Applicant
And
| MS TUROVA |
Respondent
REASONS FOR JUDGMENT
Introduction and background
These proceedings have been before the Court for a long time. They concern the parties’ child, [X] – who was born in 2000. [X] is their only child.
In September 2007, the parties agreed to orders pursuant to which [X] was to live with the father on four days per week and with the mother on three days per week (or otherwise as mutually agreed between the parties). The parties also agreed that they were to have equal shared parental responsibility for [X].
In December 2007, the father applied to discharge the consent orders made just three months previously. He sought orders to the effect that [X] live with him and that the mother "spend supervised time only" with her. In his affidavit in support of his application, he said that the parties commenced living together in November 1996. He also recorded that he was born in Macedonia in 1959 and that the mother was born in Belarus in 1973. Among other things, he alleged that he met the mother when she was working as a prostitute, and he was her client.
The father said that the parties separated in July 2007, and that the mother went to Belarus around the time that the consent orders were made in September 2007. He added that the mother left [X] with him while she was away.
The father's affidavit sets out a number of concerns about the mother and her behaviour. He expressed a desire to ensure that [X] lives with him in a safe and secure environment.
The proceedings came before me on 5 December 2007. Among other things, I ordered that an independent children's lawyer be appointed, and that the parties attend family dispute resolution counselling pursuant to section 13C(1)(b) of the Family Law Act. Various other interim and interlocutory orders were made. Most relevantly, the following orders were made by consent:
a)the consent orders made on 21 September 2007 be discharged;
b)until further order, [X] live with the father; and
c)until further order, the mother spend supervised time only with [X] at Bethany Family Services, Geelong.
Both parties were represented on 5 December 2007.
The proceedings came back before me on 22 February 2008. Both parties filed a number of affidavits during the month or so prior to that hearing date.
In her affidavits sworn in January and February 2008, the mother denied all or almost all of the father's allegations. For example, she denied that she had ever worked as a prostitute, that she used drugs of addiction, that she abused prescription medication, that she associated with inappropriate persons and that she lived in an inappropriate environment. She alleged that the father had been violent to her, and that he had subjected her to verbal and emotional abuse and threats. In broad terms, she asserted that he is an overbearing and manipulative person, and that he intimidated her and kept her isolated.
The mother described herself as [X]’s primary caregiver, and gave many examples of her involvement in [X]'s life (including regular attendances at [X]’s school to help out in her class).
Between the initial hearing in December 2007 and the adjourned hearing in February 2008, it became clear that one of the most significant issues in the proceedings was [X]’s alleged refusal to spend time with or communicate with the mother, and her apparent alignment with the father's case. The father's view was that [X] did not wish to spend any time with the mother, and he was unwilling to coerce her to do so. For her part, the mother could not understand [X]’s apparent attitude. She missed [X] terribly and was concerned that [X] might come to believe (as a result of the father's "constant negative brainwashing") that the mother did not love her and had abandoned her.
A number of witnesses swore affidavits in support of either the mother's or the father's case, and subpoenas were issued by the ICL.
All parties (including the ICL) were represented at the hearing before me on 22 February 2008. Eventually, consent orders were made to the following effect:
a)the matter was listed for an interim hearing on 13 June 2008, and for trial on 11 September 2008 (with an estimated hearing time of two days);
b)a family report was ordered;
c)both parties were ordered to attend and complete an appropriate post separation parenting program;
d)the mother was ordered to see Dr K, psychiatrist, for the purposes of a psychiatric assessment and report; and
e)the ICL was to endeavour to obtain a report from Bethany Family Services regarding the progress of the supervised time spent between [X] and the mother.
The mother filed a response on 31 March 2008. In it, she sought that the father's application be dismissed, that [X] live with her and that [X] spend time with and communicate with the father "as ordered and directed by the Court".
The Family Report was prepared by Ms Jay Manya, psychologist. It is dated 21 April 2008. The report from Bethany is dated 14 April 2008. Both reports are attached to affidavits filed in the proceedings.
The reports raise troubling issues regarding the father's attitude and behaviour. For example, Ms Manya wrote that:
a)[X] is "impacted by adult issues" and "receives no protection from her father to keep out of the adult conflicts and issues";
b)[X] "parrots her father's statements that she feels safer only in his company", but is unable to explain why she feels unsafe in her mother's company; and
c)she (Ms Manya) suspects that there may be some truth in the mother's statements to the effect that the mother's relationship with the father was "restrictive and abusive", because the father "seems to think in an old-fashioned way about the role of men and women in society".
On the other hand, Ms Manya wrote that the mother –
… presented as a deeply grieving mother and cried throughout the session. However she was able to speak reasonably, seemed to have a good insight into her and others behaviour, was able to express emotions appropriately and think rationally. Her tender and loving behaviour was totally appropriate with her daughter.
Ms Manya was of the view that "there needs to be ongoing frequent visits between the mother and child".
The Bethany report records that the father was "reminded on several occasions that he is not to discuss parental historical issues" in front of [X]. The report also records that, although only a couple of contacts took place between [X] and the mother, there was "an easy interaction" between the mother and [X] when [X] settled into the contact.
The final paragraphs of the Bethany report are as follows:
[X] presented as sporadic in her willingness to attend supervised contact. On the weeks that she did not attend, [X] was adamant in her refusal, not even prepared to say hello to her mother. On the occasions that contact occurred, [X] separated easily from the father and went willingly with the worker. It is clear [X] is confused in her supposed response to her mother and often unable to settle during contact. [X] is aware of the parents’ dispute and it seemingly has impacted somewhat on her ability to re-engage with her mother.
Apart from the initial contact that took place, [X] was observed to clearly enjoy her time with the mother. [X] willingly participated in activities with her mother and initiated conversation and interaction.
Dr K's psychiatric report on the mother is dated 7 May 2008. It is attached to his affidavit sworn the 13 May 2008. In his summary, Dr K observed that "there are vast differences in the accounts (of the parties), and versions of their life together". He also wrote:
I gained the impression that the mother was warmly disposed towards her daughter, and from the psychiatric viewpoint would be able to be an appropriate custodial parent if, and as decided by a court. I did not gain the impression from examining her today, that from the psychiatric viewpoint, that supervised access was indicated in any way, but naturally I have not examined [X]. …
I find her from the psychiatric viewpoint to be capable of full-time custody of the daughter if the court were to decide that pathway should follow. There does not seem to me to be any grounds from the psychiatric viewpoint for supervised access, although she clearly indicates that the current supervised access with her daughter is not working satisfactorily from her point of view. …
In an affidavit sworn on 11 June 2008, the mother referred to certain of the findings reached by Ms Manya, Dr K and the staff at Bethany. She also attached drug screens, all of which were negative.
All parties (including the ICL) were represented at the hearing before me on 13 June 2008. On that day, consent orders were made to the following effect:
a)the trial date (being 11 September 2008) was confirmed; and
b)[X] was to spend time with the mother as follows:
i)the supervised time was to continue at Bethany for a further three visits over a period of six weeks; and
ii)thereafter (commencing on Saturday 26 July 2008) the mother was to have unsupervised time with [X] for three hours each Saturday (with changeover to take place at Bethany, and for the time spent to occur in the greater Geelong area).
A further order was made (again, by consent) in the following terms:
The mother and the father forthwith do all things necessary and sign all such documents required to enable [X] to attend further therapeutic counselling at either Centacare Geelong, Glastonbury Family Services or Bethany Family Services, that may be offered, that could possibly assist [X] in developing a positive attitude to spending time with her mother and to further assist her in dealing with any symptoms of anxiety she may be currently feeling.
Notwithstanding the orders made on the 13th of June 2008, [X] did not spend time with the mother after that date. According to the father, [X] refused to see her. In his affidavit sworn on 19 August 2008, the father said that he "made every possible effort to and encouraged [X] to see the mother", but [X] refused to do so. The affidavit also deals with other matters. In essence, the father reiterated his concerns regarding the mother, denied that he had influenced [X] to refuse contact with the mother, and continued to press for all time spent between the mother and [X] to be supervised.
Attached to the father's affidavit sworn 19 August 2008 is a report from Ms S, psychologist. Ms S’ impression of [X] was that "she is very strongly identified with her father". Ms S endorsed Ms Manya's opinion to the effect that [X] should continue to live with the father "at present", while "every effort is made to re-establish and build a relationship with her mother in the long term". The report concludes as follows:
I believe the next step is for [X] to have professional help to reattach to her mother. It would need to be made very clear to both (the father) and [X] that is the sole purpose for continued therapy. It is obviously in [X]'s long-term interest to maintain some relationship with her mother and I will explain this to (the father).
Ms S herself swore an affidavit in the proceedings on 1 September 2008, to which her report is attached.
The mother's solicitors ceased to act for her on 20 August 2008. As a result, she was self represented when the matter next came before me on 11 September 2008.
The trial did not proceed on 11 September 2008. The father and the ICL were represented, but the mother appeared for herself. At the request of the parties, the proceedings were stood down to enable negotiations to take place. I referred the mother to the duty lawyer, and the orders that were eventually made by consent contain a notation to the effect that the mother had indeed received legal advice from the duty lawyer.
The following orders were made by consent on 11 September 2008:
1. All previous parenting orders be discharged (save for the appointment of the ICL).
2. Until further order, [X] live with the father.
3. The father and the mother do all things and sign all necessary documents to facilitate [X] attending upon a psychologist specialised in attachment therapy at Centacare, Myers Street, Geelong or such other organisation the ICL nominates.
4. The father and the mother comply with all lawful directions of the psychologist including but not limited to attendance with the child and if so directed the mother spending time with the child.
5. Any cost associated with the therapy … be borne by the mother and she reserves the right to seek reimbursement from the father at the final hearing.
6. The ICL be authorised to discuss with Centacare the therapy.
7. All extant applications otherwise be adjourned to a date to be advised in a duty list before Walters FM in September 2009 or thereabouts.
The orders also contain the following notations:
A. The ICL has spoken with Mr B at Centacare Footscray this day who advises that they offer attachment therapy at Centacare offices at both 3 Wingfield St, Footscray and Centacare Geelong at 27/31 Myers St, Geelong, with minimal delay and a minimal charge.
B. The program is initially a Smart Moves eight-week programme potentially leading into a larger duration parenting order program attempting to rebuild the relationship between the mother and [X].
C. The mother has received legal advice from the duty lawyer in relation to these minutes.
As envisaged in the above orders, the matter came back before me in a duty list on 14 September 2009. All parties (including the ICL) were represented at the hearing – the mother having appointed new solicitors in or about March 2009.
Counsel advised me that the attachment therapy ordered in September 2008 had involved approximately half a dozen sessions, and that it had been unsuccessful. [X] was still not seeing or spending time with the mother.
I was also advised that the parties had reached agreement to the effect that the father is to attend upon Dr K for the purpose of a psychiatric assessment. A further family report was to be prepared, and the matter was otherwise to be adjourned for final hearing before me on a date to be fixed.
During the course of the submissions before me on 14 September 2009, I was informed that the mother's solicitors had issued a subpoena to
Ms B of the Geelong Family Relationship Centre, directing her to produce the following documents:
All files, records, documents and reports relating to the mother, the father and [X] – including, but not limited to, correspondence, notes, memoranda, progress notes, diary notes and assessment details.
I was also informed that the subpoena had been served on Ms B at the Geelong Family Relationship Centre on 4 September 2009, together with appropriate conduct money. An affidavit of service confirming these details was filed on 10 September 2009. I was advised, however, that Ms B, and the Geelong Family Relationship Centre, did not regard themselves as bound by the subpoena, and declined to produce the relevant material. In broad terms, they relied upon the family counselling confidentiality provisions contained in the Family Law Act.
The Geelong Family Relationship Centre was responsible for conducting the “attachment therapy” ordered (by consent) in September 2008.
During the course of the hearing on 14 September 2009, Ms Hannan (for the mother) advised me that her instructor, Ms Yeoh, had spoken with Ms P of the Geelong Family Relationship Centre, and that Ms P had described the father's behaviour towards [X] as being of grave concern, and amounting to emotional or psychological abuse. Ms P had recommended to Ms Yeoh that the husband should be psychiatrically assessed as a result of his views, which were extremely damaging for [X].
Given the nature of the hearing on 14 September 2009 (which was being conducted in a very busy duty list) I adjourned the matter for further hearing on 18 September 2009. I also directed that a further subpoena be issued to the director of Centacare Catholic Family Services (under whose auspices the Geelong Family Relationship Centre operates) to attend at court on 18 September 2009 for the purpose of giving evidence and producing the same documents referred to in the earlier subpoena to Ms B. I was concerned by Centacare’s response to the previous subpoena, and wished to clarify the basis upon which the organisation was refusing to produce material which, prima facie, was highly relevant to [X]'s welfare and best interests generally.
The second subpoena was issued on 15 September 2009 and served on the same day.
The proceedings came back before me on 18 September 2009. Once again, all parties (including the ICL) were represented. Ms Stoikovska of counsel appeared for Centacare (qua the Geelong Family Relationship Centre).
It soon became clear that Ms Stoikovska's client was not applying to set aside the subpoena, and that it was not objecting to producing its file. It was objecting, however, to the court permitting the parties to inspect the relevant material.
As I understood Ms Stoikovska's submissions, Centacare was relying upon two grounds in support of its opposition to any order permitting the parties to inspect the contents of its file. The first was that Centacare falls within the definition of a "family counsellor" in section 10C of the Family Law Act (in that it is an organisation designated by the Minister for the purposes of that section). The second ground was to the effect that, since Centacare is a "family counsellor" within the meaning and contemplation of section 10C, the confidentiality provisions contained in section 10D apply – without more – to its files (and, indeed, to any evidence that anyone within Centacare might be able to give in relation to the “attachment therapy” conducted pursuant to the orders made in September 2008).
It was not in dispute that Centacare falls within the definition of a "family counsellor" in section 10C, but whether or not the second ground relied upon by Ms Stoikovska had merit was disputed by
Ms Hannan (for the mother) and Ms Agresta (for the ICL). Mr Combes (for the father) was content to adopt Ms Stoikovska’s submissions.
Orders have been made
After hearing argument in this matter on 18 September 2009, I ordered that all parties have liberty to inspect the file produced to the court by the Geelong Family Relationships Centre. At Ms Stoikovska's request (and without opposition from the other parties) I stayed that order "until further order".
I delivered very brief, preliminary reasons for my ruling, but reserved the right to provide more detailed reasons if necessary. These are those reasons. None of the parties referred me to relevant authorities relating to the issues in dispute. In those circumstances, I have seen fit to do no more (and no less) than provide “more detailed” reasons. I have not made reference to authorities that were not cited to me and in relation to which no argument was addressed. Relevantly, and although I am familiar with the cases, I have not discussed the decisions in Relationships Australia v Pasternak (1996) 20 Fam LR 604, Centacare Central Queensland and Downing v G & K; Attorney General of the Commonwealth (Intervener) (1998) 23 Fam LR 476, Northern Territory of Australia v GPAO (1999) 24 Fam LR 253, Relationships Australia (Queensland) v M (2006) 37 Fam LR 12 and Trapp v Vonne (2009) 41 Fam LR 471
Relevant sections of the Family Law Act
Non-court based family services forms the subject of Part II of the Family Law Act. Family counselling is dealt with in Division 2 of Part II. Given that there is no dispute regarding the applicability of s.10C, it would appear that the provisions of Division 2 that are relevant for present purposes are as follows:
SECTION 10B
Definition of family counselling
Family counselling is a process in which a family counsellor helps:
(a) one or more persons to deal with personal and interpersonal issues in relation to marriage; or
(b) one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:
(i) personal and interpersonal issues;
(ii) issues relating to the care of children.
SECTION 10D
Confidentiality of communications in family counselling
(1) A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.
(2) A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3) A family counsellor may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over – that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.
(4) A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person; or
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child's interests under an order under section 68L – assisting the lawyer to do so properly.
(5) A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families.
(6) Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the counsellor's evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.
(7) …
(8) In this section:
"communication" includes admission.
SECTION 10E
Admissibility of communications in family counselling and in referrals from family counselling
(1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family counsellor conducting family counselling; or
(b) a person (the professional ) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c) in any court (whether or not exercising federal jurisdiction); or
(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2) Subsection (1) does not apply to:
(a) an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3) …
(4) A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
What was not in dispute?
In order to consider the question of whether or not inspection of the subpoenaed material should be permitted, it is of assistance if I first outline certain factual matters that were not in dispute. They are:
a)As indicated above, Centacare is an organisation designated by the Minister for the purposes of section 10C. In other words, it is a "family counsellor".
b)The parties (and [X]) were referred to Centacare for "attachment therapy", in accordance with paragraph 3 of the orders made by consent on 11 September 2008 ("the September 2008 orders").
c)Paragraph 6 of the September 2008 orders provides that the ICL "be authorised to discuss with Centacare the therapy".
d)The mother, the father and the ICL were all of the understanding and belief – at the time of the making of the September 2008 orders – that the process in which the parties were to be involved at Centacare would be reportable to the court. Put another way, the mother, the father and the ICL all understood and believed that the process (described as "attachment therapy") would be neither confidential nor privileged in any relevant sense.
e)At some point in time, Centacare may or may not have advised the ICL that the process would not be reportable to the court. No clear evidence was presented to me in relation to this subject.
f)There is no clear evidence to the effect that either the mother or the father was ever advised (by Centacare, the ICL or anybody else) that the process would not be reportable to the court, or that it was or might be confidential or privileged within the contemplation of provisions such as sections 10D and 10E. Indeed, both Ms Hannan (for the mother) and Mr Combes (for the father) confirmed that their respective clients believed, at all relevant times, that the process would be fully reportable.
g)The intake forms completed by the mother and the father at the time that they commenced the process with Centacare were provided to the court. The father's "Client Activity Details" form records the activity to be undertaken as "Court ordered for attachment therapy re child". The mother’s "Client Activity Details" form is less clear. Although consent forms were provided to the parties relating to information sharing and data collection, the forms make no reference to the confidentiality provisions of the Family Law Act, and do not suggest – in any way – that the process upon which the parties were about to embark might be privileged or confidential in the context of the extant family law proceedings. None of the intake documents provided to me could have give the parties any hint that the (court ordered) process would be other than fully reportable to the court that ordered it.
h)The "attachment therapy" process commenced in or about October 2008. It had concluded by February 2009.
i)In late May 2009, the mother's solicitor (Ms Yeoh) had a telephone discussion with Ms P of the Geelong Family Relationship Centre. Ms Yeoh's version of disclosures made by Ms P during the course of that telephone discussion was provided to the court in the form of a proof of evidence, and was marked as MFI M1.
j)Ms Agresta (for the ICL) described the facts or matters disclosed to Ms Yeoh by Ms P as "relevant, probative and compelling" to, of or in relation to the matters in issue in the proceedings generally, and to [X]'s best interests in particular. None of the counsel before me (including Ms Stoikovska) suggested that they were otherwise.
k)As is apparent from (h), (i) and (j) above, the comments made by Ms P to Ms Yeoh were conveyed after the process in which the parties had been involved at Geelong Family Relationship Centre had concluded.
Although I have quoted section 10E above, Ms Stoikovska based her submission on section 10D. She argued that Centacare (and its relevant officers) must not disclose a communication made to it (or one of its relevant officers) "while (it) is conducting family counselling" – unless the disclosure is required authorised by section 10D. The first question arises, therefore, is whether the process in which the parties were involved could properly be described as "family counselling" within the meaning and contemplation of section 10B.
Explanatory Memorandum
The Revised Explanatory Memorandum relating to the Family Law Amendment (Shared Parental Responsibility) Bill 2005 – which led to the Family Law Amendment (Shared Parental Responsibility) Act2006, assented to on 22 May 2006 (with introduced sections 10B, 10C, 10D and 10E into the Family Law Act) – provides the following explanation for the insertion of sections 10D and 10E:
Part II - Division 2 Family counselling
Section 10B Definition of family counselling
106. Currently `family and child counselling' contains elements of processes concerned both with psychological health and relationships issues and those that aim to resolve disputes (including conciliation see section 10F for further information). The two types of processes needed to be clearly delineated in order to allow the successful introduction of compulsory dispute resolution (concerned only with resolution of disputes).
107. In order to achieve such a distinction, the Bill introduces two new, more descriptive terms - `family counselling', inserted by this section and `family dispute resolution' (defined at section 10F). The definition of `family counselling' is based on the National Alternative Dispute Resolution Advisory Council's (NADRAC) `Glossary of Terms'.
Section 10C Definition of family counsellor
108. Section 10C provides a definition of persons who may be regarded as family counsellors. …
Section 10D Confidentiality of communications in family counselling
113. Currently section 19 of the Act requires family and child counsellors to make on oath or affirmation of secrecy. The form of this oath or affirmation is set out at regulation 58 of the Family Law Regulations 1984. This section combines these existing provisions to simplify the Act and, by moving the terms of the oath or affirmation into the primary legislation, emphasises the importance of confidentiality.
114. New section 10D aims to clarify when communications made in family counselling must or may be disclosed.
115. Recognising the importance of confidentiality to the success of family counselling, subsection 10D(1) provides that a family counsellor must not disclose a communication made in family counselling unless the disclosure is required or authorised under the section.
116. In order to provide guidance to family counsellors the section delineates the circumstances in which disclosure is mandatory from those circumstances in which disclosure may occur, at the discretion of the family counsellor. The Government considers that it is only appropriate to mandate disclosure of communications where the body or individual to whom communications are to be disclosed is able to be prescribed in the legislation. As a result, disclosure of communications made in family counselling is mandatory where the family counsellor reasonably believes that the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
117. The situations in which a family counsellor may disclose a communication made in family counselling are set out at subsection 10D(4). These situations include the situation where the family counsellor reasonably believes that the disclosure is necessary for the purpose of protecting a child from the risk of physical or psychological harm (paragraph 10D(4)(a)). As is the case in relation to the concept of harm employed in section 68F of the Act, the physical or psychological harm referred to here encompasses sexual harm.
118. Subsection 10D(3) enables a family counsellor to disclose a communication, with the consent of the party who made the disclosure, where that person is an adult, or, where the disclosure was made by a child who is under 18, both parents must consent to the disclosure. If agreement cannot be reached the matter may be referred to the court for decision. This situation is similar to that which operates in relation to parentage testing, under section 69W of the Act.
119. The ability to disclose communications, with consent, will assist the people participating in family counselling in a number of ways. For example, if a person consents to the disclosure of information when the family counsellor is making a referral to another professional, this will ensure that clients will not need to relate the details of their circumstances each time they see a different professional.
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121. Subsection 10D(6) clarifies that information that is inadmissible as evidence due to the effect of section 10E, does not become admissible merely because a family counsellor is required or authorised to disclose that information under subsections 10D(2) to (5). The Note to this subsection clarifies that the counsellor's evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.
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Section 10E Admissibility of communications in family counselling and in referrals from family counselling
125. Currently, the admissibility into evidence of communications and admissions made in family and child counselling and family and child mediation, or in a professional consultation pursuant to a referral by a family and child counsellor or family and child mediator, is addressed by section 19N of the Act.
126. Section 10E largely recreates section 19N, to the extent that that section relates to family counsellors. Subsection 10E(1) provides that a communication made in family counselling is not admissible in any court or proceedings, in any jurisdiction.
127. Subsection 10E(1) also provides that a communication made when a professional consultation is being carried out on referral from a family counsellor is also inadmissible in any court or proceedings, in any jurisdiction. In order to ensure that professionals to whom family counsellors make referrals are aware of the inadmissible status of communications made to them, subsection 10E(4) requires the family counsellor to inform them of this fact when making a referral.
128. As is the case under current section 19N, an admission or disclosure that indicates that a child under 18 has been abused or is at risk of abuse may be admitted as evidence, unless there is sufficient evidence of the admission or disclosure available to the court from other sources.
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Was the process in which the parties were involved "family counselling"?
It is clear that section 10B(a) does not apply because the parties are not and never have been married.
The September 2008 orders make it clear that the purpose of the referral to Centacare was so that [X] could "attend upon a psychologist specialised in attachment therapy". The mother and the father were to do all things required to facilitate [X]'s attendance for that therapy and, beyond that, to do whatever the psychologist directed – in order, presumably, to maximise its possibility of success. "Attachment therapy" is not defined in the orders and Ms Stoikovska did not refer me to any professional articles or legal authority which might serve to clarify either what the therapy is or how it should be conducted. Relevantly, no expert or other evidence was provided to me for the purpose of persuading me that "attachment therapy" falls properly within the definition of "family counselling" in section 10B. For example, I simply do not know whether "attachment therapy" amounts to "a process in which a family counsellor helps (the parties and [X], or some combination of them) to deal with … personal and interpersonal issues". It seems unlikely that it amounts to a process involving a family counsellor helping the parties to deal with "issues relating to the care of children".
By way of example only, and bearing in mind that no submissions were made to me regarding the nature and purpose of attachment therapy, I would record that Mosby's Dictionary of Medicine, Nursing and Health Professions[1] defines "attachment therapy" as "a treatment for attachment disorders, in which the therapist aims first to establish a firm attachment of the patient to the therapist and then to transfer that secure attachment to appropriate people in the patient's life". The same dictionary defines "attachment" (relevantly) as "a mode of behaviour in which one individual relates in an affiliative or dependent manner to another; a feeling of affection or loyalty that binds one person to another" or "the relationship developed by an infant with its caregivers", and "attachment disorder" as follows:
a disorder of infancy and early childhood, characterised by biopsychosocial pathology arising from failure of the child-carer bond due to maternal deprivation or neglect. Problems may include failure to thrive, failure to meet physical and cognitive milestones, and anxiety and mood problems. Described … as appearing in a predictable pattern of protest (crying, calling out and searching), despair (loss of hope that the mother will return) and detachment (emotional distancing of the child from the mother or other carers), infant attachment disorders are thought to contribute to relationship problems and disorders in adult life.
[1] Australian and New Zealand Edition, 2006
Having regard to the very serious consequences that flow from the characterisation of a process as "family counselling" – which consequences obviously include the possibility of evidence which is highly relevant to the safety or best interests of a child being excluded from consideration in legal proceedings where the court is legislatively compelled to regard the best interests of the child as the paramount consideration (and, in doing so, is also legislatively compelled to consider, among other things, the need to protect the child from physical or psychological harm from being subjected to, or exposed to abuse, neglect or family violence) – it seems to me that the applicability of provisions such as ss.10D and 10E should be clearly and affirmatively demonstrated. I am not persuaded that the applicability of the provisions has been demonstrated in the present case.
Was the relevant communication made "to the counsellor while the counsellor was conducting family counselling"?
If I am wrong in my conclusion to the effect that the "attachment therapy" process for which the parties were referred by the September 2008 orders was not "family counselling", then the question arises whether the subpoena has the effect of causing the counsellor to disclose a communication made to her while she was conducting family counselling. As indicated above, the genesis of the subpoena forming the subject of the current application comprises statements made by the counsellor (or a servant or agent of the counsellor, as it were) to the mother's solicitor, Ms Yeoh. The statements were made well after the relevant process (which I am prepared to assume for current purposes amounted to "family counselling") had been completed.
It has not been demonstrated to me that whatever Ms P said to Ms Yeoh during the telephone conversation in late May 2009 amounted to disclosure of "a communication made to (Ms P) while (she was) conducting family counselling". For example, Ms P's comments may amount to no more than her observations of the father's behaviour and her professional opinion regarding conclusions to be drawn from that behaviour. Alternatively, Ms P's comments might amount to disclosure of a communication made by the father to someone other than Ms P (such as the mother or [X]) in Ms P's presence. On the other hand, it is fair to assume that Ms P also conveyed to Ms Yeoh certain statements made by the father to Ms P or in Ms P's presence. I am not aware, however, of the context in which the father made the statements (to
Ms P or in her presence) which were, in turn, communicated to
Ms Yeoh. Nor am I aware of the context in which Ms P may have observed the father's behaviour. Put another way, no evidence has been provided to me to the effect that Ms P's observations or any statements made to her by the father occurred during the "attachment therapy" or "family counselling" process.
In my opinion, absent the type of evidence referred to in the preceding paragraph, the Court is not entitled to conclude that a breach of section 10D is likely to result from either inspection of the material forming the subject of the subpoena or the giving of evidence by Ms P. I accept that objection might be taken at a later stage to the tendering in evidence of material from the subpoenaed file, or to the admissibility of certain specific oral evidence to be given by Ms P, but it seems to me that Ms Stoikovska's "blanket" objection to the inspection of the contents of the subpoenaed file, and the calling of Ms P to give evidence pursuant to the subpoena, is premature.
The father does not consent to relevant communication is being disclosed
Mr Combes made it clear that the father does not consent to Ms P disclosing any communication that he may have made to her during any process that might properly be characterised as "family counselling". To that extent, Mr Combes relies upon section 10D(3).
I have noted the father's objection referred to in the previous paragraph. To the extent that the subpoena might allow the inspection of documents which reveal communications made by the father to the counsellor during family counselling, I accept that section 10D(3) cannot be relied upon to avoid the provisions of section 10D(1).
Was Ms P’s communication to Ms Yeoh necessary to protect [X] or otherwise required or authorised by section 10D(4)?
Section 10D(4) provides that a family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for protecting the child from the risk of harm (whether physical or psychological), or for a variety of other reasons.
The evidence provided to me to date does not allow me to form any clear view as to Ms P's motivation for holding her discussion with
Ms Yeoh. If Ms P had disclosed to the ICL communications made to her during family counselling, then, prima facie, the disclosure (which was clearly contemplated in the September 2008 orders in any event) would have been required or authorised by section 10(4)(f). But
Ms Yeoh is not the ICL – she is the mother's solicitor.
Ms Stoikovska seemed to argue that the court should infer that Ms P did not reasonably believe that any relevant disclosure made by her to Ms Yeoh was necessary for one of the purposes set out in section 10D(4) – and therefore required or authorised as envisaged in section 10D(1). In other words, Ms Stoikovska seemed to argue that Ms P wittingly or unwittingly breached section 10D(1) during the course of her conversation with Ms Yeoh.
Without clear evidence to support such a finding, I am not prepared to conclude that Ms P lacked a belief (on reasonable grounds) that her communication with Ms Yeoh, and any disclosures made during the communication, were necessary for one or more of the purposes set out in section 10D(4). On the contrary, it seems to me that I should infer that Ms P did reasonably believe that any disclosures that she may have made during the course of her discussion with Ms Yeoh were indeed necessary for one of the relevant purposes.
It is a serious matter to suggest that a family counsellor (or the servant or agent of a family counsellor) knowingly, or perhaps negligently, breached confidentiality provisions such as section 10D. It is too early for the Court to reach such a conclusion. Much will depend (obviously) upon Ms P's evidence. At this stage, however, it is sufficient to record that neither Ms Stoikovska nor Mr Combes has persuaded me – to any extent – that any evidence that Ms P could give relevant to her communication with Ms Yeoh would not be regarded as being required or authorised by section 10D(4).
Section 10E
As the explanatory memorandum makes clear, section 10D deals with the obligations of family counsellors and seeks to "clarify when communications made in family counselling must or may be disclosed". Section 10E deals with the admissibility in legal proceedings of communications (and admissions) made in such counselling.
Ms Stoikovska did not rely on section 10E to any significant extent. Her arguments were directed to the relevance of section 10D.
Clearly, if the process in which the parties were involved pursuant to the September 2008 orders did not comprise "family counselling", then section 10E has no more applicability in the circumstances now before me than does section 10D. Similarly, the broad context in which the father may have made the statements (to Ms P or in her presence) which were, in turn, communicated to Ms Yeoh, or the broad context in which Ms P may have observed the father's behaviour, is no clearer if consideration is being given to section 10E than if it is being given to section 10D. There is insufficient evidence before me to determine, at this stage, the admissibility of material contained in the subpoenaed file, or the admissibility of the specific evidence to be given by Ms P.
In my opinion, and given the unusual circumstances present in the case now before me, it cannot be argued that the issue of the subpoena amounted to an abuse of process or that it is capable of being set aside on any other ground. Those circumstances include the following (among others):
a)The mother and the father both believed that they were involved in a reportable process.
b)Centacare failed (or arguably failed – on the evidence before me at the present time) to advise them or otherwise bring to their attention that, in its opinion, the process was not reportable and, on the contrary, was privileged or confidential. Although the question of privacy was dealt with in the forms signed by the parties in a very limited context, no reference whatsoever was made to the provisions of the Family Law Act, and no notice was given to the parties that evidence of matters to be discussed cannot or might not be able to be given in a court of law.
c)The discussion between Ms P and Ms Yeoh took place well after the process in which the parties had been involved had concluded.
Without evidence to the contrary, it is fair for the court to infer at this stage that, to the extent that Ms P may have indeed disclosed a communication made to her while she was conducting family counselling (which, as I have indicated, is less than clear), that disclosure was required or authorised by section 10D(4), and hence
Ms P must have reasonably believed that the disclosure was necessary for one or more of the purposes set out in the provision. If that is so, then it remains to be determined whether whatever was actually said by Ms P to Ms Yeoh falls within section 10E(1) and, if it does, whether the exception in section 10E(2) applies.
I refer to and rely upon the following passage from Northern Territory v GPAO:[2]
The question whether a subpoena should be set aside is anterior to any question of the admissibility of evidence. Further, upon production to the court, claims of privilege may be raised which require inspection of documents by the judge; a court may also limit access to the documents and restrict the making of copies. All these steps are designed to assist the preparation for or conduct of trials. The conduct of the trial or the hearing may produce the situation where few or none of the documents are sought to be tendered.
[2] at paragraph 72, per Gleeson CJ and Gummow J
Conclusion
Quite clearly, that which was intended by the September 2008 orders was a reportable form of therapy. It was not intended to be “family counselling”, as that process is envisaged in Division 2 of Part II of the Family Law Act. In my opinion, for the serious consequences of that Division in relation to confidentiality to adhere, it should be clear beyond argument that the process that was envisaged falls within the definition of “family counselling”.
Arguably, the gravamen of my determination is that the parties never agreed to embark upon confidential counselling, and it should not be for Centacare to unilaterally (as it were) impose such an arrangement upon parties who did not knowingly, and with full understanding of the relevant implications and ramifications, agree to such a process. Given that it employed a formal intake process (which required the parties to sign certain forms), there seems to be no reason why Centacare could not have asked the parties to sign forms which clearly defined the process as being “family counselling” within the meaning and contemplation of that term in the Family Law Act, and which notified them that the process was both confidential and non-reportable. Centacare, seemingly, did not do that.
I certify that the preceding seventy two (72) paragraphs are a true copy of the reasons for judgment of Walters FM
Associate: Suzette De La Motte
Date: 19 October 2009
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