Thpal and Xing

[2008] FamCA 611

FAMILY COURT OF AUSTRALIA

THPAL & XING [2008] FamCA 611

FAMILY LAW  -  PROCEDURE  -  objection to inspection by litigant of documents referable to counselling of children  -  relevance of procedural fairness and natural justice

Family Law Act 1975 (Cth)

HUSBAND: Mr Thpal

WIFE: Ms Xing

INDEPENDENT CHILDREN’S LAWYER:

FILE NUMBER: MLC 8839 of 2007

DATE DELIVERED: 27 June, 2008

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Brown J

HEARING DATE: 27 June, 2008

REPRESENTATION

SOLICITOR FOR THE WIFE: James McDermott

THE HUSBAND: In person

INDEPENDENT CHILDREN’S LAWYER Danielle Webb Lawyers

Orders

1. That the husband have leave to inspect documents produced pursuant to subpoenas by the Children’s Protection Society subject to the following conditions:

   (a)the documents are to be inspected at court, at a place and time fixed by the subpoena clerk and, if deemed appropriate by the subpoena clerk, in the presence of a member of the court staff;

   (b)no document shall be photocopied, scanned, photographed or reproduced using any other form of electronic or digital technology;

   (c) no document may be removed from the room in which it is being inspected;

   (d)the husband may be accompanied by an interpreter/translator and by no more than one other person at any one time;

   (e)the husband may take notes from the inspected documents;

   (f)the costs of any interpretation/translation shall be borne by the husband and it is his responsibility to arrange for such interpretation/translation.

2. That the husband be and is hereby restrained by himself his servants and agents from discussing or in any way publishing or disseminating the contents of the inspected documents or any notes based on those contents with any person save for the purpose of preparation of his case for trial in this court.

3. That the husband have leave to rely at the trial on material filed on his behalf when he was represented in these proceedings by a legal practitioner and argument referable to the question of whether material was translated to the husband is otherwise reserved to trial.

4. That the husband have leave to give oral evidence in chief at the trial.

5. That the Independent Children’s Lawyer have leave to issue a further subpoena directed to Victoria Police. 

6. That the reasons for judgment be transcribed and a copy made available to the parties and the solicitor for the Children’s Protection Society.

7. That pursuant to Rule 19.50 of the Family Law Rules 2004 this matter reasonably required the attendance of solicitors appearing as counsel.

AND THE COURT NOTES:

A.That all parties were reminded of the necessity to appear at the Pre-trial Conference fixed for 3 o’clock on 23 July 2008.

IT IS NOTED that publication of this judgment under the pseudonym Thpal & Xing is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth)

FAMILY COURT OF AUSTRALIA AT MELBOURNE

FILE NUMBER: MLC 8839 of 2007

MR THPAL

Husband

And

MR XING

Wife

INDEPENDENT CHILDREN’S LAWYER

REASONS FOR JUDGMENT

Adjournment application

1. This is an application by the Children’s Protection Society to limit inspection of documents produced by it pursuant to subpoena.

2. The solicitor for the Children’s Protection Society seeks an adjournment for a week or two.  It is put that the CPS is surprised the matter “came on so quickly”, that it has not been given a proper opportunity to prepare, and that counsel who is prepared to appear pro-bono is unavailable today, because of the short notice.  It seems to me this submission misunderstands the nature of the application before the court. 

3. The subpoena was issued on 21 December, 2007.  As with every other subpoena in this court, it had a return date in a subpoena list, which in this case was 15 January, 2008.  At that time the husband was legally represented.  CPS had no objection to the lawyers for the parties, and the ICL, inspecting its file, which contains notes of counselling sessions with the parties’ three children.  I note that L was born in January, 1994, D in July, 1995 and M in August, 1997.  It is alleged that the children have been physically and, in respect of two of them, sexually abused by their father. 

4. The matter has been back before the Magellan registrar on a number of occasions after CPS learnt that the husband was now acting for himself;  it is the husband’s access to this material which is in issue.

5. The need to list the case to resolve the issue was foreshadowed earlier, and the need to list it is clear.  These proceedings have been in the court for some time.  The husband has had no contact with the children since January 2007.  It has been known for a long time that a worker or workers from CPS would be called as a witness or witnesses in the trial, as the children have been attending CPS for some time and have allegedly made disclosures of abuse to CPS workers.  The Department of Human Services report of 8 November, 2007 summarises, in considerable detail, advice from a CPS worker to a DHS worker.  That evidence is before the court and thus in the hands of the husband. 

6. An argument of this sort, about the release of subpoenaed documents, is not cutting edge law.  Process cannot be allowed to overtake substance.  The case was initially listed for 9:30 am. yesterday (Thursday).  As Mr. Farquhar said, the parties and the CPS were told of that on Monday, as that was my first sitting day in the registry, after an absence of over a month.

7. It then became apparent that the case would have to be adjourned because, despite diligent attempts, an Asian language interpreter could not be obtained on Thursday.  An interpreter was available today, and is here.  As those in the courtroom have heard (I say this with no disrespect to Mr. I) he is not a NAAT1 accredited interpreter, but has other qualifications.  The court knows, from experience, that NAAT1 accredited interpreters in this language cannot be obtained, and only with considerable difficulty can a competent interpreter, such as Mr. I, be booked.  The husband is entitled to have the services of an interpreter.

8. The solicitors for CPS contacted the court when told that the case would be adjourned to today’s date.  As I understand it, someone from the solicitors’ office spoke with Mr. …, the Magellan client services officer.  He or she may also have spoken with Ms. …, the Magellan registrar, but I am not certain of that.  The person certainly spoke to my legal associate, Ms. …, and asked that the matter be adjourned to a date next week. 

9. CPS’s solicitors were advised that their request could not be accommodated because of the problem in obtaining an interpreter.  Today, the solicitor for CPS appears and seeks an adjournment, relying not on the adjournment from yesterday to today, but on Monday’s advice that the application would be heard this week.

10. I am well aware of the problem of obtaining pro-bono counsel.  It is regrettable that no such counsel is available for someone in the husband’s position, in this case.  However, the Children’s Protection Society has competent representation, through a reputable firm, on a pro-bono basis. 

11. The husband in this case has some idea of what the CPS workers will say, because he has had access to the detailed summary in the DHS report, but no affidavits or proofs of evidence will be provided by CPS workers.  Thus, the issue of the husband’s access to these notes is of vital importance.  I am not satisfied that a routine submission going to that issue should be adjourned.

CPS application

1. Earlier this morning an application for an adjournment was refused.  I have now heard submissions from Mr. Farquhar, the solicitor appearing pro-bono for the Children’s Protection Society.  His submissions were cogent, comprehensive and well considered;  I do not think counsel could have taken the matter further.

2. In this case two subpoenas have been issued, directed to CPS.  The first, filed on 5 September, 2007, was at a time when the husband was legally represented.  When documents were produced pursuant to it, they were released for inspection by the legal practitioners for the parties.  A second subpoena was filed on 21 December, 2007 by the independent children’s lawyer, who was appointed shortly prior to that date.  At that time, the husband was still legally represented.  Later, his position changed and he now acts for himself.

3. It had been hoped the case would come on for trial in February this year.  That did not occur and it is now anticipated it will be listed for trial by August, at the latest.

4. CPS has not taken objection to release of the notes to the solicitor for the wife or to the independent children’s lawyer.  It does object to their release to the unrepresented husband.  The submissions can be summarised under two broad headings.  The first might be called the public interest issue.  The second relates to allowing an alleged perpetrator access to allegations made by the children he is accused of abusing.

5. I say at the outset that I am well aware of the relevance and importance of the public interest.  I accept that CPS will be concerned not only about the ramifications on this family and these three children with whom it has been involved, but on its capacity to work with other families in the future.  CPS may have legitimate concerns about the willingness of people who seek their help to be open and frank with workers, if those people believe that notes of those conversations could get into the public arena.

6. I am sure CPS needs no reminding that its mandate is to aid in the protection of children.  I am confident that were a new allegation of abuse to be made to a CPS psychologist or counsellor, CPS would see itself as being under an obligation to notify DHS.  Mandated or not, those who work with CPS would not, I am confident, shirk that responsibility.

7. The court needs to bear in mind that CPS is dealing with children, not adults, and different considerations may apply.  This case can be distinguished from those considerations in a criminal trial where the availability of counselling notes in sexual assault trials is circumscribed by Victorian law.  This court needs to bear in mind its obligation to make orders in the best interests of children, its obligation to accord procedural fairness to every litigant who comes before it and its obligation to ensure that natural justice prevails.

8. On behalf of CPS it is submitted that disclosing this material to the husband will damage, possibly very significantly, the relationship between the children and their counsellors.  It is put that these are sensitive and vulnerable relationships, and should not be undermined by allowing the children’s most innermost and most intimate thoughts and feelings to be conveyed to the person who, they say, has abused them.  Further, it is submitted that allowing access to these notes by the husband necessarily involves giving access to the alleged perpetrator of abuse, of details of the allegations, and of the victims’ discussions, thoughts and fears consequent upon them.

9. It is conceded that the documents contain what were referred to by Mr. Farquhar as “serious allegations of abuse”.  It was for that reason, he said, CPS strongly resists the granting of access to the husband.  It was further submitted that if CPS were unsuccessful in its opposition, and the court determined the husband should have some access to this material, it should not allow wholesale production but rather limited access to only those parts the ICL or the court saw to be necessary.

10. The solicitor for the wife is present today.  I have given him an opportunity to make submissions;  after all, these are her children, too, and submissions are being made about the potential effect on them by those involved in therapeutic interventions.  Nothing has been put for the wife to support the CPS’s application.  Her solicitor has adverted to a practical issue, being the fact the husband does not read English or read English well.  As the ICL pointed out, that is as relevant to every document filed in the proceedings.  It is a problem to be overcome, whether it be an affidavit sworn by the children’s mother in English, or documents subpoenaed from other sources, such as police or a child’s school.  It is not of the essence in this determination.

11. The wife’s solicitor has also, properly, referred to the importance of the court according procedural fairness and natural justice to the husband, and to the potential ramifications if that is not done, including the possibility of an appeal.  That is to do no more than point out the importance of natural justice and procedural fairness to any decision of this court. 

12. In discussion with the solicitor for the CPS I pointed out the inherent tensions in his client’s position.  This court cannot prejudge the question of whether the children have, or have not, been abused by their father.  He strenuously denies it and has denied it from the outset.  It is a central issue to be determined in the trial.  From what I am told, the best, and perhaps the only detailed, evidence of what is alleged has been revealed in the course of the children’s counselling with CPS.  I cannot imagine CPS would want the court to operate, and make a final determination, in ignorance of it.

13. One or more CPS workers are to be called at the trial.  Oral evidence will be given of numerous counselling sessions with the children.  That carries the potential for counsel to call for the notes taken at these sessions.

14. To be effective, the therapy that these children are being offered needs to be delivered, as the solicitor for CPS has said, in a safe environment.  This is at the heart of his submission.  The court cannot and has not prejudged the issue of the accuracy of the allegations.  It looks at them today, as advanced by CPS.  If the children have been subjected to the abuse alleged, but are ordered to spend time with the perpetrator, because the court had no admissible evidence of the abuse, there would be little point in further counselling.

15. Notwithstanding CPS’s genuine concerns about the vulnerability of these children, the potential effect on this family, and the potential effect on its wider work in the community, I am not satisfied that the court can, consistent with its obligation to accord procedural fairness and natural justice to a litigant, and consistent with its obligation to make orders which are in the best interests of children, restrict the husband’s access to this material. 

16. I have looked at the material;  I have not read every word of it.  There are two bundles in which there is a great deal of duplication;  one relates to the counselling prior to service of the first subpoena and the other, which includes all notes prior to service of the second subpoena, duplicates the first bundle.  On its face it is similar to material routinely produced by the Gatehouse Centre, or psychologists working with children in private or institutional settings, or counsellors working with children in schools or through organisations such as adolescent mental health services.  While I do propose to allow the husband leave to inspect, that will be subject to a number of conditions.  These conditions are common to many cases in which a party acts for him or herself. 

17. First, the documents are to be inspected at this registry of the court, in a place and at a time fixed by the subpoena clerk and, if considered appropriate, in the presence of a staff member.  Second, no document is to be photocopied or electronically reproduced, in any way.  Third, no document is to be removed from the room.  Fourth, the husband may be accompanied by an interpreter-translator, and by no more than one other person at any one time.  Fifth, the husband may take notes.  Sixth, any costs of interpretation or translation are to be borne by the husband.  Seventh, the husband will be restrained from discussing the contents of the notes with any person, or publicising them in any way, save for the purpose of preparation of his case for trial.

18. The reasons for judgment will be transcribed and a copy will be made available to the parties, and to the Children’s Protection Society. 

1. The husband has handed me some documents on which he seeks to rely at trial.  There is a letter from S School, dated 26 October, 1999, which notes that L is brought to school and collected by her father each day and is neat and clean and happy.  There is a statutory declaration from the husband, in which he states that the wife did not bring the children for contact to the Shopping Centre on 5 October, 2002.  There is then a letter from a neighbour, dated 27 April, 2007, who states he has not observed the husband mistreating or being violent to the children.  There is another letter, dated 18 April, 2007, from another neighbour, in which she says she has never witnessed any violence.

2. There is some reference to this material in the family report and the husband may wish to give it to the trial judge.

3. I am told the husband is illiterate in English and his native language.

4. I will give the husband leave to rely on material filed on his behalf when he was legally represented;  arguments as to its translation or otherwise will be reserved to the trial.  He will also have leave to give oral evidence-in-chief at the trial.

5. I give leave to the independent children’s lawyer to issue a further subpoena addressed to Victoria Police.

I certify  that the preceding
34 paragraphs
are a true copy of the reasons for
judgment herein of the
Honourable Justice Brown.

Dated the           day of            2007.

…………………………………………
Associate.