Toscani & Silva
[2024] FedCFamC2F 1657
•20 November 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Toscani & Silva [2024] FedCFamC2F 1657
File number(s): MLC 2305 of 2023 Judgment of: JUDGE O'SHANNESSY Date of judgment: 20 November 2024 Catchwords: FAMILY LAW – Parenting – Where one party seeks leave on first day of trial to rely on a therapist’s report – Where therapist’s report had not been filed on affidavit – Where parties had not previously identified dispute over admissibility of report – Where one party claims report is confidential – Where the affidavit and report be deemed admissible Legislation: Evidence Act 1995 (Cth) ss 55, 56, 135
Family Law Act 1975 (Cth) Part II Divisions 2 and 3, ss 69ZT
Cases cited: Langford & Coleman (1993) FLC 92-346
Oberlin v Infeld [2021] FamCAFC 66
Rasheem & Rasheem [2024] FedCFamC1F 595
Division: Division 2 Family Law Number of paragraphs: 42 Date of hearing: 23 September 2024 Place: Melbourne Counsel for the Applicant: Ms Chia Solicitor for the Applicant: Tfa Legal Counsel for the Respondent: Ms Paull Solicitor for the Respondent: Northcote Lawyers ORDERS
MLC 2305 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: MR TOSCANI
Applicant
AND: MS SILVA
Respondent
ORDER MADE BY:
JUDGE O'SHANNESSY
DATE OF ORDER:
21 NOVEMBER 2024
THE COURT ORDERS THAT:
1.The affidavit of Ms B dated 23 September 2024, and the report dated 25 February 2024 annexed thereto be and are admissible as evidence in these proceedings.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Judge O’Shannessy
RESERVED RULING ON EVIDENCE
On the first day of an intended 3-day hearing, with the issue not being addressed in either party’s outline of case or other notice of the controversy being provided to the Court, a party sought leave to file an affidavit from a therapist, Ms B. I heard argument that took up a large part of the first day of the trial and ruled that the impugned affidavit annexing a report was admissible and that leave to rely upon the affidavit should be permitted, and the impugned document was tendered as exhibit ‘F2 – 23 September 2024’. I reserved my reasons (there was no objection to that course) so as to get on with the trial, hoping to conclude it in the advised and then intended 3-day hearing. These are my reasons.
I have delivered these reasons on the same day as I will make final orders and deliver oral reasons for the substantive parenting dispute.
On the first day of the trial, counsel told me that the parties had attended upon Ms B, a therapist, and that she had written a report that neither party had filed. The applicant father, Mr Toscani, then sought leave for that report to be admitted into evidence annexed to an affidavit affirmed by Ms B on that same day, 23 September 2024. The affidavit annexed Ms B’s report dated 25 February 2024. The report was provided to the parties on or about 25 February 2024 – that is, 7 months before the first day of the trial.
Ms B had been jointly chosen by the parties and there was no question before me of her expertise. As is apparent from her unquestioned resume over four pages Ms B has been a registered psychologist since 1978 and is currently a family Consultant to the Family Law Act Courts and has been since 2006, has supervised candidates for registration as psychologists and family therapists from 1988 to 2010, has provided clinical supervision of family consultants preparing family reports since 1991, has published numerous papers in her discipline and herself continues with clinic supervision and consultation with senior peers within her disciplines.
Counsel for Mr Toscani submitted that Ms B’s report was highly relevant, and consistent with the recommendations of the family report writer, Ms C. Counsel for the respondent mother, Ms Silva, objected to the admission of Ms B’s report on the basis that:
·the affidavit had not been filed;
·it was asserted that Ms B’s therapy was not reportable, but “confidential”; and
·no actual therapy had ever occurred, merely “intake” or “assessment”.
The parties had consented to orders on 23 August 2023 which required that they attend upon Ms B for family therapy. Those orders, however, did not say expressly that that therapy would be confidential, or that it would be reportable. The orders were as follows:
1.Orders 5 to 10 of the orders made by consent on 17 April 2023 remain in full force and effect, and [X], born [in] 2012 (“[X]”) and [Y], born [in] 2016 (“[Y]”) spend further time with their father as agreed in writing taking into consideration the recommendations by [Ms B].
2.The parents attend upon [Ms B], for the purpose of family therapy and take into consideration her recommendations and directions, with the costs of therapy and any reports to be paid in equal shares by the parents.
3.The parents be at liberty to provide to [Ms B] copies of their filed materials, together with the family report of [Dr D] dated 28 June 2023.
…
[emphasis added]
It was not asserted that there was any defect or ultra vires aspect to the order. The substance of Ms Silva’s counsel’s submissions, put with some force and persistence, was that because the order did not expressly state that the therapy was “reportable” it was necessarily confidential. Further, the report had been paid for by only one party and that was also said to mean the report was confidential.
Does the order mean that the therapy is ‘confidential’?
What an order means is to be determined by the objective interpretation of the order, not the contemporaneous intentions or post-order opinions of the parties. This has been a matter of settled law since long before 1993. In 1993, the Full Court dealt with the issue of interpretation of a court order made by consent in the matter of Langford & Coleman (1993) FLC 92-346 and adopted settled authority as follows:[1]
It follows that if an order made by consent must be treated like any other non‑consensual order it must be read and interpreted quite independently of what the parties subjectively might have intended thereby. It must be read as standing on its own feet, as it were.
[1] At 79,671.
The parties were ordered to attend a particular process, or therapy, and to ‘consider’ any recommendations of the therapist. That order did not mean that the parties were bound to accept and act on the recommendations, rather ‘consider’ them. I am satisfied it was also implied in the orders was that the parties would do so in good faith.
The word ‘consider’ has an ordinary, everyday, and clear meaning, notwithstanding that it is not defined within the Family Law Act 1975 (Cth) (‘the Act’) or the Evidence Act 1995 (Cth) (‘the Evidence Act’). In Rasheem & Rasheem [2024] FedCFamC1F 595, Altobelli J observed:
65There is no definition of the phrase “consider” in the Act (Tibb & Sheean (2018) 58 Fam LR 351 at [74]). The Full Court, referring to a definition in the Oxford English Dictionary (2nd edition) determined that consideration requires a trial judge to “contemplate mentally, fix the mind upon; to think over, meditate or reflect on, bestow attentive thought upon, give heed to, take note of” (Goode and Goode (2006) FLC 93-286 at [60]; Tickner v Chapman (1995) 57 FCR 451 at 462)….
Although in reference to legislation, not as a term of an order, I accept the Altobelli J definition of ‘consider’.
I accept that being a court order, it was necessary that the order be enforceable rather than merely advisory or aspirational.[2] The order imposed the requirement that the parties actually consider the recommendations. That was a requirement, notwithstanding potential practical or evidentiary difficulties in proving whether or not a party had actually considered the recommendations if that was in dispute, as opposed to simply dismissing the recommendations because they did not agree with his or her intended outcome. For the requirement of ‘consideration’ to be enforceable, what occurred during the therapy process may be relevant. This is one further matter, apart from the implications from the reference to ‘report’ in the order and the other matters referred to herein, that satisfies me that the intention of the order was that the process and any report arising form it was not confidential, but reportable.
[2] See Oberlin v Infeld [2021] FamCAFC 66, 400 [40]: “[orders] must still be prescriptive and enforceable, not aspirational and productive of further controversy.”
The Court or the parties could have stated in the orders that the therapy was to be confidential and/or could have attempted to bring the therapy within any of the confidential processes of Part II of the Act. That was not done. The absence of such a reference is significant.
The reference in the order to the payment of a ‘report’, and the absence of any reference to confidentiality indicate that the meaning and/or purpose of the order was that any report of the therapy process would be prima facie admissible. It is unlikely (and none was asserted) that there is any purpose or utility of a report unless that is to be read and considered, and considered by the parties, their lawyers, and, if relevant, the Court.
Apart from the objective meaning of the orders, I am satisfied that at the time they were made, the parties were aware the events of the therapy and a report of those events, and Ms B’s recommendations would be available to the parties and the Court. I am satisfied because of the form of the orders and the nature of the parental dispute. The parties intentions do not determine the meaning of the orders but may inform whether it is proper to utilise a report. It was not submitted that the parties or either of them intended the therapy to be confidential at the time the orders were made.
The report
It is common ground that the parents each attended two individual sessions with Ms B after those orders were made, and that what was called an “observation session” took place with the children and their father, Mr Toscani, in September 2023. The subsequent report prepared by Ms B had been made available to both parties on or about 25 February 2024 (when it was sent via email from Ms B to the parties’ solicitors) and was annexed to Mr Toscani’s affidavit filed and served on 11 July 2024. The intention to rely on the report was clear at least form 11 July 2024.
Counsel for Mr Toscani submitted that the report had not been filed on affidavit due an oversight from both sides, and that it was not protected by any privilege under the Act but rather, that it was reportable as Ms B had been jointly instructed by the solicitors for both parties, and the parties had been ordered to consider Ms B’s recommendations, as well as share the costs equally.
Ms Silva’s counsel objected to the admission of the report in evidence and submitted that Ms B had been jointly engaged for family therapy, but not jointly instructed to prepare a report, and the report was therefore inadmissible on the basis of confidentiality. Counsel for Ms Silva also submitted that the contents of the report were irrelevant.
A letter dated 5 September 2023 from Ms Silva’s solicitors to Mr Toscani’s then solicitors in regard to whether Ms B’s therapy was reportable was exhibited and marked ‘M1’. It stated the following:
…
Further, as the parameters of the engagement of [Ms B] for family therapeutic counselling is not clear in the orders dated 23 August 2023, can you please confirm your understanding whether such family therapeutic counselling is reportable or non-reportable.
..
That solicitor ceased to act for Mr Toscani on 27 November 2023, and it is common ground that there was no further correspondence between the parties, whether represented or not, on the issue.
Counsel for Ms Silva then submitted that Ms Silva was told at her first session with Ms B that the sessions would be confidential. Ms Silva was then called to give evidence on that point, but counsel for Mr Toscani objected on the basis that hearing oral evidence from Ms Silva on the issue of Ms B’s report before the substantive trial commenced would be an undue waste of the court’s time. Nonetheless, I was satisfied that it was relevant to hear Ms Silva’s evidence in regard to what she says she was told by Ms B. It should have been on affidavit, but was not. But I was satisfied, as a matter of procedural fairness, and in the interests of justice, and in the interests of the welfare of these children, that Ms Silva should be given the opportunity to give oral evidence regarding the controversy surrounding Ms B’s report.
From the witness box, Ms Silva told me:[3]
[MS SILVA]:The very first thing that was mentioned when we went in and had that very first session was that anything we said – that I said to her during these sessions was confidential.
[3] Transcript p 84 [1].
Emails between the parties, Ms Silva’s solicitor, and Ms B on 22 November 2023 and 5 December 2023 were exhibited and marked ‘F1’. Included in that exhibit is an email from Ms B to the parties and Ms Silva’s solicitor which reads:
Dear Parties
I understand that the next Court event is 6th December 2023.
I wish to provide concerning my assessment of the family relationships, including the children with their parents.
I will also provide my opinion about caregiving arrangements as they might fit my assessment
I understand that the fee for the report [which is likely to be $800 plus GST] will be shared between the [Mr Toscani] and [Ms Silva].
Please advise.
Thank you and kind regards
[Ms B], […]
Ms Silva’s solicitors then responded to Ms B on 5 December 2023 as follows:
Good morning [Ms B]
We refer to your correspondence below and advise that the parties are next in court on 13 December 2023.
Our office wrote to [Mr E], [Mr Toscani]’s former solicitor on 5 September 2023, to confirm their understanding of the parameters of your engagement – particularly whether in their view the counselling was reportable or non-reportable. However, we did not receive a response.
Nonetheless, we are content for a report to be prepared and our client has indicated that she can make payment of her half share to our trust account tomorrow. Can you please confirm that payment from both parties will be required before the report is drafted/fees are incurred.
[emphasis added]
I was told from the bar table that there was no response to that email, but it is common ground that Ms B’s report was sent to both sides on 25 February 2024.
During the whole of this process the 17 April 2023 interim orders provided for the children to spend twice weekly day time only with Mr Toscani. It is undisputed that Ms Silva attended what is described as an “intake session” with Ms B on 29 August 2023 and that at or soon after that session Ms Silva was invited by Ms B to attend a joint session with Ms B and Mr Toscani. It is not disputed Mr Toscani attended an “intake session” on 31 August 2023. Ms B and Mr Toscani arranged for Mr Toscani and the children to attend a session on 6 September 2023.
Ms Silva’s solicitors wrote to advise Ms B that Ms Silva was not prepared to attend in the same room as Mr Toscani for a joint session. A joint session never occurred. Ms B observed the children and Mr Toscani on 6 September 2023. Ms B met with Ms Silva on 19 October to provide “feedback” about her observations and opinions. Ms B met Mr Toscani on 22 November 2023 to provide “feedback” to Mr Toscani. It did not proceed any further.
Ms Silva also asserted that there never was any therapy and that all that occurred were intake sessions not therapy. I don’t accept that submission. I regard the whole of the process as part of the therapy.
The relevant legislation
I refer to sections 55 and 56 of the Evidence Act 1995 (Cth) which provide as follows:
Section 55 Relevant evidence
(1)The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
(2)In particular, evidence is not taken to be irrelevant only because it relates only to:
(a) the credibility of a witness; or
(b) the admissibility of other evidence; or
(c) a failure to adduce evidence.
Section 56 Relevant evidence to be admissible
(1)Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding
(2)Evidence that is not relevant in the proceeding is not admissible.
Hence, if the report is relevant, it is prima facie admissible unless excluded by some other provision of the Evidence Act or the Act.
I also refer to Part II, Divisions 2 and 3 of the Act, of which the relevant sections include the following:
Division 2--FAMILY COUNSELLING
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; or
(c)one or more persons who may apply for a parenting order under section 65C to deal with 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.
…
Division 3--FAMILY DISOUTE RESOLUTION
Section 10F Definition of family dispute resolution
Family dispute resolution is a process (other than a judicial process):
(a) in which a family dispute resolution practitioner:
(i)helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; or
(ii)helps persons who may apply for a parenting order under section 65C to resolve some or all of their disputes with each other relating to the care of children; and
(b)in which the practitioner is independent of all of the parties involved in the process.
…
Section 10H Confidentiality of communications in family dispute resolution
(1)A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.
…
It was not submitted that the report was inadmissible by way of any provision of the Act, including sections 10D and 10H. I accept what was effectively the joint position of counsel, that Part II, Divisions 2 and 3, did not apply to this court ordered therapy.
Section 135 of the Evidence Act was not expressly addressed by counsel, but the substance of submissions of counsel for Ms Silva and her evidence raised that issue. In substance, she said, having participated in the process she said preliminary to the actual therapy on the basis that what she said to Ms B was confidential, it was therefore inadmissible, and/or should not be admitted as a matter of fairness or that the process of obtaining the information recited in the report was such as to make the report prejudicial.
Section 135 provides as follows:
Section 135 General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
I was not satisfied that I should refuse to admit the report pursuant to section 135.
I am satisfied that the observations in the report are prima facie relevant in the sense of sections 56 and 56 of the Evidence Act. Those sections are in Part 3.1 of the Evidence Act and have not been removed from consideration by section 69ZT of the Act.[4] I am not persuaded that there is anything about the process undertaken that resulted in the report, by reference to either the Act or the Evidence Act, that would disqualify or remove it from admission.
[4] Section 69ZT in substance provides that those parts of the evidence act that deal inter alia with hearsay, non-expert opinion, admissions, tendency and coincidence, credibility and character do not apply to child-related proceedings unless the Court decides they should.
Neither party suggested that Ms B’s therapy was family counselling as defined in section 10B of the Act, or a family dispute resolution process within the definition set out in section 10F of the Act. I am satisfied that the process that Ms B was retained to undertake was “confidential” in the sense of Ms B and the parties were not at liberty to use, reproduce or publish the report, or anything about the therapy, except for the purpose of these proceedings.
For these reasons, and because I was not satisfied that the report was irrelevant to these proceedings and to the care of these children, and because no other privilege was identified as applying to Ms B’s report, I accepted it into evidence, and Ms B’s affidavit annexing the report was exhibited and marked ‘F2’.
It Is also significant that the letters from Ms Silva’s solicitor referred to above of 5 September 2023 (referred to in ‘F1’) and 5 December 2023 deal with the question of whether ‘the counselling was reportable or non-reportable’, when discussing the court-ordered therapy, but did not assert that the process or any part of it was ‘confidential’ or ‘non-reportable’.
I am satisfied that, although not expressly stated, when taken as a whole, the intent, purpose and meaning of the orders is that the therapy process, and any report related to it, were intended to be reportable to this Court.
The affidavit of the therapist was filed late, but the substance of the affidavit, the annexed report, was made available to the parties back in late February, about 7 months prior to the application for leave to file the affidavit. Mr Toscani had shown an intention to rely upon the report by annexing it to his trial affidavit back on 11 June 2024, a bit over 3 months prior to the application for leave to file the affidavit. The therapist who wrote the report was available for cross examination if required.
I am and was satisfied in all of the circumstances that the affidavit annexing the report was and is admissible in the proceedings.
I certify that the preceding forty-two (42) numbered paragraphs are a true copy of the Reasons for Judgment of Judge O'Shannessy. Associate:
Dated: 21 November 2024
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