SMITH & DUKE
[2015] FamCA 990
•10 November 2015
FAMILY COURT OF AUSTRALIA
| SMITH & DUKE | [2015] FamCA 990 |
| FAMILY LAW – SUBPOENA – where the subpoena was filed without leave of the Court – where there is no objection by the subpoena recipient but concerns expressed for the professional implications should the Court require the evidence to be given – where the respondent and independent children’s lawyer object – where consideration is given to the principles for issuing a subpoena to a non-party – where consideration is given to relevance – where consideration is given to psychologists and public interest immunity –where the subpoena is struck out. |
Evidence Act 1995 (Cth) – s 126H, s 127, s 131
Family Law Act 1975 (Cth) – s 10C, s 10D, s 10E, s 10F, s 10G, s 10J, s 69ZN,
| Benson & Hughes (1994) FLC 92-483 Cooper & Cooper (2012) 48 Fam LR 425 Fritze & Fritze [2006] FamCA 232 Goldy & Goldy (No 2) [2011] FamCA 418 Hatton v Attorney General of the Commonwealth of Australia (2000) FLC 93-038 In the Marriage of Lace (1981) FLC 91-080 Jermyn & Garling (2012) FMCAfam 814 National Employers Mutual General Association Limited v Waind & Hill [1978] 1 NSW LR 372 |
UnitingCare – Unifam Counselling & Mediation v Harkniss (2011) FLC 93-476
| APPLICANT: | Ms Smith |
| RESPONDENT: | Mr Duke |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission |
| FILE NUMBER: | ADC | 4833 | of | 2009 |
| DATE DELIVERED: | 10 November 2015 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Berman J |
| HEARING DATE: | 9 November 2015 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Mr Jordan |
| SOLICITOR FOR THE APPLICANT: | Jordan & Fowler |
| COUNSEL FOR THE RESPONDENT: | Mr McQuade |
| SOLICITOR FOR THE RESPONDENT: | Christopher Ganzis and Co |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Cocks |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of SA |
Orders
That the subpoena filed 5 November 2015 directed to Ms C, psychologist, be dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Smith & Duke has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| FAMILY COURT OF AUSTRALIA AT ADELAIDE |
FILE NUMBER: ADC 4833 of 2009
| Ms Smith |
Applicant
And
| Mr Duke |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
On 1 May 2015 and 1 June 2015 orders were made that listed the parenting dispute between the parties for trial commencing 9 November 2015.
On 5 November 2015, the Court file records that Mr Duke (“the father”) caused a subpoena to issue to Ms C (“psychologist”) to attend the proceedings to give evidence and to produce documents described as follows:
Case notes relating to the attendance of the following parties:
[Mr Duke] and [Ms Smith] (“the mother”) and the child [B] born … 2006 (“the child”).
The psychologist attended on the first day of trial in answer to the subpoena and produced to the Court her notes and other documents comprising her file.
Whilst she did not lodge a formal objection to the subpoena, she submitted that the late filing service of the subpoena upon her was likely to cause considerable disruption to her practice. Furthermore, she expressed a concern that if the Court considered that she should give evidence and produce her notes, this may require her to consider how she should conduct herself professionally in the future in circumstances where her involvement arose from final orders that provided for the parties and the child to engage in reunification therapy in circumstances where the relevant order purportedly provided confidentiality in respect of the process.
The psychologist had not been contacted prior to the issue of the subpoena and it was her submission that the existence of the subpoena came to her attention fortuitously by email at 7 pm on 6 November 2015.
Her final position was that she would not formerly object to the subpoena either in terms of her giving evidence and producing documents but that it was a matter for the Court and she would abide the event.
There was however opposition by the mother who submitted that she understood the order would be to assist the parties in the resolution of the proceedings and to facilitate the relationship between the child and the father. The provision in the order that the therapeutic counselling would be “confidential” was a significant factor. Taken against the intention of the parties that there be finality to the proceedings, it was the mother’s position that the suggestion of a report and/or evidence being given as to the process would likely be antithetical to an end to the litigation.
The substance of the final orders namely, that the child would spend significant and substantial time with the father, was not conditional or dependent upon the therapeutic intervention being successful but that it would aid the smooth functioning of the orders against the history of conflict and dispute.
The Independent Children’s Lawyer (“ICL”) also objected to the subpoena. It was submitted that the therapeutic intervention and reunification therapy did not take place because the child was apparently resistant to the process. Accordingly, there was nothing to report and the Court was unlikely to be assisted by the evidence.
BACKGROUND
The father was born in 1958 and the mother in 1971. The parties commenced cohabitation in July 2004 and married in 2005. The child was born in 2006 and in October of that year the parties separated. They have been in significant dispute almost immediately following separation.
The mother asserts that she has done all that she can to promote a relationship between the child and his father but to no avail. She says that the child is demonstrably resistive to having a relationship with the father and spending time with him.
For his part, the father argues that there is no cogent complaint, allegation or assertion put forward by the mother which would explain the child’s opposition to spending time with him. He considers that the child has been the focus of a clear intention of the mother to disrupt the relationship principally because the father resisted the mother’s proposed relocation of the child to Brisbane in order that she could reside with her current partner who is engage in university study.
The proceedings reached trial in 2014. On the first day of the hearing namely, 21 January 2014, the parties settled the matter and presented to the Court a Consent Minute of Order. As discussed, the consent order provided for significant and substantial time between the father and the child and the further provision that there would be confidential reunification therapy and intervention by a psychologist.
SUBPOENA PROCESS
The principles for issuing a subpoena to a non-party are:
(1)that the requesting party is only able to obtain a document or documents relevant to an issue in the proceedings; and
(2)that the steps to be followed are conveniently set out in the remarks of President Moffit in National Employers Mutual General Association Limited v Waind & Hill [1978] 1 NSW LR 372 at 381:
The first is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena or to the production of documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of documents, which include whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise. It is the third step which alone provides material upon which ultimate decisions in the case rests. In these three steps the stranger and the parties have different rights, and the function of the judge differs.
In Hatton v Attorney General of the Commonwealth of Australia (2000) FLC 93-038 the Full Court set out examples of where a court may determine that it is proper to set aside a subpoena:-
·If the subpoena is for an improper purpose namely to obtain discovery against a third party.
·Where it might be oppressive to comply with the subpoena.
·Where a party embarks upon a “fishing expedition”.
·That the subpoena should be set aside because it lacks relevance to the proceedings.
OBJECTIONS
It is noted that the subpoena recipient does not formerly object to the subpoena but expresses a clear concern for the professional implications should the Court require the evidence to be given and the documents produced.
The objection comes from the mother and the ICL.
It is not suggested that the subpoena is for an improper purpose but rather that it has relevance to the proceedings. Reliance is placed upon Annexures “BSD12, 13 and 14” annexed to the father’s trial affidavit filed 5 November 2015.
“BSD12” sets out the process that the psychologist considers most likely to serve the interests of the parties, the child and the relevant order. In her letter of 26 February 2014, she recites the order and records that “this counselling is to be confidential”.
The psychologist sought feedback from the parties as to which options going forward would best serve their needs.
By letter dated 8 May 2014 (Annexure“BSD14”), the psychologist reports:
I am writing to follow up my letter of 26/2/14.
I have now met once more with each of you. What has been discussed in those sessions is not reportable. It is my view at this time that the options I set out in my letter of 26/2/14 are not appropriate.
I do not believe [the child] would successful engage with me for reunification counselling. I do not believe co-parenting counselling is indicated. I would suggest that a parallel parenting approach has more chance of success. I understand you are engaged in mediation and wish you well in that process. If it is unsuccessful then it may be that you need to seek further legal advice.
The clear implication is that the child did not engage in the process and the psychologist did not consider that she was able to satisfy the focus of the order and the expectations of the parties.
Counsel for the ICL argues that the letter of 8 May 2014 suggests clearly that there is nothing of relevance because the process simply did not take place.
It is an observation, not an opinion of the psychologist that the child did not successfully engage with her for reunification counselling.
Whilst it is obvious that the parties spent time with the psychologist, there is little or no forensic value in their interaction. Counsel for the father argues that it is the views of the psychologist as to “a parallel parenting approach” having a greater chance of success than her interaction with the parties and the child.
The mother argues that there must be meaning to the cloak of confidentiality given that it was integral to the orders and clearly the subject of agreement.
Whilst the subpoena could have been the subject of strong objection because it was filed without leave and the late service may have resulted in significant embarrassment being occasioned to the recipient, ultimately the psychologist attended, produced documents and indicated an availability to give evidence if required.
It would therefore be difficult to argue that it was oppressive if the point is not taken by the recipient.
To some extent it could be argued that it is a “fishing exercise” given that the only information available to the parties to determine the question of relevance is the short report on 8 May 2014. It would appear that the focus is not necessarily on what passed between the parties and the psychologist but rather her view or suggestion that a parallel parenting approach may have merit. That proposition if relevant is best lead from the family consultant and not the psychologist.
The collateral argument is whether there is any issue of relevance to the proposed evidence given the process did not advance.
The first step in the subpoena process is however satisfied by the documents having been brought to the Court. The objection is taken at the second step namely, whether the parties should have leave to inspect the documents before a consideration is given to the evidence being tendered.
The subpoena also however requires the evidence of a psychologist.
It is not suggested that her documents would be inspected and then a decision would be made that she be called. Rather, it is proposed that she give her evidence and presumably the examination in chief would be crafted from her documents. Clearly, it is not likely that there will be any proof provided and none of the parties could have any understanding of the extent and nature of her evidence.
The basis of the mother’s objection arising from the condition of confidentiality imposed by the order is that it is a matter of public interest in unity that documents and information should be prevented from disclosure and inspection to the parties in these circumstances.
To that argument must also be added the further obligation of the father to seek leave of the Court to adduce evidence that was not sought at the trial directions hearing or by any subsequent application after the time for compliance had passed.
STATUTES
The Family Law Act 1975 (Cth) (“the Act”) prohibits a family counsellor from disclosing communications made during family counselling. Even if the parties consent, a court cannot compel a family counsellor to disclose communications (see UnitingCare – Unifam Counselling & Mediation v Harkniss & Anor (2011) FLC 93-476). However, the confidentiality provisions contained within ss 10D, 10E, 10F and 10J do not apply as the psychologist in these proceedings is not a family counsellor or a family dispute resolution practitioner as defined in s 10C or 10G of the Act.
In the Marriage of Lace (1981) FLC 91-080 Frederico J held it would be “contrary to the policy of the Act” to allow evidence to be given of conversations between the parties and to individuals who, although acting as marriage counsellors, did not meet the definition of marriage counsellors under s 18 of the Act (the equivalent of the present section 10C).
Frederico J considered the authorities and found that:
Bona fide negotiations between spouses with a view to effecting compromise of a matrimonial dispute must be taken to be without prejudice.
The Evidence Act 1995 (Cth) (“Evidence Act”) provides pursuant to s 131 that evidence of settlement negotiations between parties is generally inadmissible. In addition, the Evidence Act sets out a number of privileged relationships outside of the traditional legal client privilege ie, the protection of journalists and their sources (s 126H) and religious confessions (s 127), but the relationship between a client and a psychologist or psychiatrist does not receive the same protection.
There is also a general discretion to exclude evidence pursuant to s 135 and 136 but that relates to the third step namely, whether or not evidence should be admitted during the course of the trial proceedings.
Accordingly, there is unlikely to be any statutory ground upon which a subpoenaed party may object to the subpoena.
PUBLIC INTEREST IMMUNITY
In Cooper & Cooper (2012) 48 Fam LR 425 at [48], the Court held that whilst it would be ideal if all family counselling services could offer the same protection, there is “no basis, founded upon legislative interpretation and absent a consideration of public policy considerations…which would warrant such position being arrived at…”.
In Benson & Hughes (1994) FLC 92-483 Chisolm J found that:
There is a general public interest in the proper administration of justice which is promoted by the principle that “all relevant evidence should be adduced to the court when it makes its decision” (Baker v Campbell (1983) 153 CLR 52 at 66 per Gibbs CJ)
His Honour therefore held that public interest immunity did exist in this instance but that it should be weighed against the interests of the child. At page 81,045 his Honour considered how a court should balance the paramountcy principle when considering cases in which “there is some clear and important other conflicting interest” and concludes “the law requires the court to take account of the child’s welfare but balance it against the other interests or policy”.
Public interest immunity was also used to successfully uphold an objection to a subpoena in Goldy & Goldy(No 2) [2011] FamCA 418 in which a party sought to subpoena “the Kids Helpline”. Dawe J considered the Court:
…should be very wary about issuing subpoenas to an organisation which relies upon its confidentiality for its very existence. The benefit of the service provided by Kids Helpline to children and young people who use that service is significant.
Accordingly, her Honour upheld the objection on the grounds of public interest immunity.
PSYCHOLOGISTS AND PUBLIC INTEREST IMMUNITY
In Fritze & Fritze & Anor [2006] FamCA 232 Watts J considered that:
Public interest immunity differs from privilege as it operates for the benefit of the public interest in general and does not protect private relationships or interests.
His Honour noted that while a preference had been expressed to narrow a claim of public interest immunity to situations involving a government function, it has “also been said that the categories giving rise to public interest immunity are not closed and they may be extended by analogy with a known category of public interest exceptions”.
In Jermyn & Garling (2012) FMCAfam 814 the father issued a subpoena to the mother’s psychologist in relation to her handwritten notes from the treatment of the mother’s experiences of childhood sexual abuse. The mother and the psychologist objected on the grounds of relevance and public interests. The Court undertook an extensive review of the various authorities both in Australia and overseas and held that to release the additional information would be to “victimise her and inappropriately and in a fashion that would be against the public interest”.
INTERESTS OF THE CHILD
Section 69ZN sets out the principles for conducting child related proceedings and 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.
It has not been argued however that the disclosure of the information is likely to negatively impact upon the child other than by the further exacerbation of the proceedings and the potential loss of faith in a process would seem important in all the circumstances namely, the involvement of the child in therapy.
CONCLUSION
I consider that the evidence is likely to be of little probative value and it seems important as a matter of public policy that where the parties agree to a process being confidential, that should not likely be the subject of exposure unless the possible advantage either to the child or to the proper of administration of justice is significant.
It is a matter of balance and ultimately I consider that parties properly informed should be able to embark upon a process that they understand to be confidential and therefore not the subject of report, disclosure and subsequent evidence other than in exceptional circumstances.
I do not consider that the forensic focus of the evidence that may be given by the psychologist reaches that level.
Accordingly, I propose to order that the subpoena directed to the psychologist be struck out.
I certify that the preceding fifty five (55) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Berman delivered on 10 November 2015.
Associate:
Date: 10 November 2015
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