Tsocas and Rilak
[2018] FamCA 981
•23 November 2018
FAMILY COURT OF AUSTRALIA
| TSOCAS & RILAK | [2018] FamCA 981 |
| FAMILY LAW – PROCEDURE – subpoena to child’s treating practitioner – objection to subpoena on the basis that it would threaten therapeutic relationship – consideration of Division 12A – consideration of importance of determining best interests based on relevant evidence – where access to subpoena material granted on limited basis. |
| Family Law Act 1975 (Cth) - s 69ZN |
| Baker v Campbell (1983) 153 CLR 52 Crawford & Sisinis and Anor [2014] FamCA 912 Riemann & Riemann [2017] FamCA 318 |
| APPLICANT: | Mr Tsocas |
| RESPONDENT: | Ms Rilak |
| FILE NUMBER: | SYC | 2062 | of | 2010 |
| DATE DELIVERED: | 23 November 2018 |
| PLACE DELIVERED: | Canberra |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Gill J |
| HEARING DATE: | 25 October 2018 |
REPRESENTATION
| SOLICITOR FOR THE APPLICANT: | Self-representing |
| SOLICITOR FOR THE RESPONDENT: | Self-representing |
Orders
The parties are granted leave to inspect the material produced on subpoena by Ms RR (‘the subpoena material’);
The parties may not photocopy the subpoena material without the prior leave of the Court;
The parties may not communicate the content of the subpoena material to any person, excepting the following:
(a) A treating therapist of either of the parties;
(b) A Court-appointed Family Consultant or Single Expert;
(c) A legal practitioner representing either of the parties.
Note: The form of the order is subject to the entry of the order in the Court’s records.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Tsocas & Rilak has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).
| FAMILY COURT OF AUSTRALIA AT CANBERRA |
FILE NUMBER: SYC 2062 of 2010
| Mr Tsocas |
Applicant
And
| Ms Rilak |
Respondent
REASONS FOR JUDGMENT
Background
This matter concerns a subpoena to produce directed to Ms RR, the psychologist who is currently seeing the child of the relationship, B (the child), and the father. The subpoena has been issued at the request of the mother. Ms RR has lodged a notice of objection to the subpoena.
Ms RR’s involvement in the proceedings comes from the final orders that were made on 13 November 2015. Those orders required the parents to make appointments to attend upon Ms RR, to provide her with a copy of the orders of the court and the reasons for judgement along with the report of Dr C. Further, the parents were to attend such appointments as made by Ms RR and follow all recommendations made by her, “including but not limited to referrals to other treating professionals for either or both of the parents and for the child.”
The child and the father have been attending on Ms RR. Ms RR states that the mother has seen her once only (5 January 2016) and has since refused. She says that she has consistently seen the father, and the child has attended appointments as directed by Ms RR. The purpose, as perceived by Ms RR, was to repair the relationship between the child and the mother and to reintroduce that relationship, as well as to provide support in the context of high parental conflict.
The subpoena, in general terms, is directed to documents and correspondence related to the child and the father.
The proceedings relating to the objection commenced on 14 September 2018. However there were difficulties in maintaining a telephone link with Ms RR and the court ran over time to deal with the matter. It was however identified at that stage that although Ms RR’s objection was atypical, in the sense that it did not involve a claim of privilege, it attracted the operation of s 69ZN of the Family Law Act 1975 which sets out the principles for conducting child -related proceedings. The proceedings were adjourned to 25 October 2018 and Ms RR attended on that day, making herself available for cross-examination in relation to the objection.
Ms RR has lodged the material with the Court and given evidence in support of her objection to producing the material.
By her notice of objection dated 9 May 2018 Ms RR identified that “production of documents threatens ongoing therapeutic relationship between psychologist and client.” Ms RR attached a letter setting out the circumstances in greater detail. In particular she notes that the “production of sensitive therapeutic material may jeopardise the continuation” of the therapeutic relationship with the child. She expresses concerns that the subpoenaed information may be used detrimentally toward the child, “putting her in an emotionally vulnerable position and dissolving trust built between” Ms RR and the child.
Ms RR indicated that she has seen the child on ten occasions, about once each school term. She has seen the child together with her father on about half of those occasions. Her attendances on the child run from about 50 minutes to an hour and a quarter.
Ms RR was concerned that the contents of the subpoenaed material could be brought up with the child in the future by the mother. She thought that this could be productive of great distress if it was used against the child in a discussion. This in turn could result in a breakdown of therapeutic confidence. She considered that this would put the child back, in a context where the child now has trust, stability and consistency with school and home. This in turn could mean that the child would struggle in developing successful therapeutic relationships in the future. This was of particular significance to the child as Ms RR thought that she has been through trauma and may have the need to seek further therapy in the future. That is, the release of the subpoenaed material to the mother could have long-term adverse consequences for the child.
Ms RR considered that the child has suffered divided loyalty, guilt and the loss of her mother. The reports that Ms RR has received about the telephone contact between the child and the mother indicated an inability on the part of the mother to hold back, leading to little confidence that she could refrain from discussing the subpoenaed material with the child.
Ms RR indicated that there was an open invitation and encouragement for the mother to attend family therapy (as contemplated by the orders).
Against this the mother says that she will not disclose the information that she receives from the subpoenaed material other than with a therapist. She hopes to use any material gained from the subpoena in obtaining a further report in respect of the child. It should be noted that the current litigation context is that there are final orders in place. The mother, having filed an initiating application, seeks an order for the preparation of a report for those proceedings. It can readily be assumed that information from the therapy between the child and Ms RR would be relevant to further proceedings, particularly in the context where there has been a complete breakdown in the contact regime between the child and the mother. It may be expected that such material would be particularly relevant to determining whether an order should be made for further assessment of the child.
General principles regarding the issuing and setting aside of, or refusal to allow inspection in relation to, a subpoena to produce
Halsbury’s Laws of Australia notes that “a subpoena must be issued in good faith and with the object and reasonable expectation of obtaining evidence which is relevant to the proceeding in which it is issued.” The onus to establish an improper purpose is upon the person seeking to set aside the subpoena.[1] A subpoena may only be used for a legitimate forensic purpose, that is, where the evidence sought would be relevant,[2] or it is likely that it would be relevant. Relevance does not require admissibility.
[1] Halsbury’s Laws of Australia [325-7405].
[2] Halsbury’s Laws of Australia [325-7410].
As identified above, the subject matter of the subpoena is relevant to the mother’s child-related proceedings, and particularly relevant to the mother’s application to have an expert appointed for the assessment of the child. A legitimate forensic purpose is present.
While the existence of a privilege, or statutory bar on production, would also form a basis for the setting aside of the subpoena, none has been raised.
Rather, the matter that has been raised is the adverse impact upon the child who is the subject of the proceedings, the child. The subpoena cuts across the confidentiality inherent to the relationship between the child and Ms RR and accordingly undermines the trust within that professional relationship.
Confidentiality does not constitute a ground to resist a subpoena.
However, the issue goes further to the question of the impact of the conduct of the proceedings on the child the subject of the proceedings. This brings into play the mandatory requirements in relation to such proceedings contained at s 69ZN of the Act. They are as follows:
Principles for conducting child-related proceedings
Application of the principles
(1) The court must give effect to the principles in this section:
(a) in performing duties and exercising powers (whether under this Division or otherwise) in relation to child-related proceedings; and
(b) in making other decisions about the conduct of child-related proceedings.
Failure to do so does not invalidate the proceedings or any order made in them.
(2) Regard is to be had to the principles in interpreting this Division.
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child-focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
The application of Division 12A has been dealt with by McClelland J in Riemann and Berman J in Crawford and Sisinis. McClelland J observed:[3]
In my view, the correct approach to the construction of Div 12A is that adumbrated by Berman J in Crawford and Sisinis, where his Honour said:
The consideration of a subpoena is not to be determined by reference to s 60CA namely, that a Court must regard the best interests of the child as the paramount consideration. That is not to suggest that the interests of the child play no part. Section 69ZN sets out the principles for conducting child related proceedings and it is clear from the first principle as set out in s 69ZN (3) that the Court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
I have also had regard to the general proposition that weight can be given to the welfare and the interests of the child which may impact upon the manner in which rules of evidence are utilised.
Consideration however of the impact of the conduct of the proceedings on the child is not an abstract concept. If s 69ZN (3) is applicable, there needs to be evidence as to the potential effect on the child if the information the subject of the objection is released. In this case no such evidence has been presented.
While his Honour focused on the application of s 69ZN(3), his reasoning is also, in my view, entirely consistent with the application of s 43 of the Act.
The difficulty that I have in this matter is the lack of assistance that I have received in determining the nature of the documents produced by F Psychology and the potential impact that release of the documents may have on the children. ….
As was the case in Crawford and Sisinis (above), I am left in a position where the concerns that have been expressed regarding the welfare of the children are without an evidentiary basis. In those circumstances, the expression of concerns, without a supporting evidentiary basis, do not displace the public interest of the Court having before it all relevant evidence that will assist the Court in determining what final orders are in the children’s best interests.
[3] Riemann & Riemann [2017] FamCA 318 at [112]-[114], [119].
The obligation is upon the Court to consider the impacts on the child in “determining the conduct of the proceedings.” Determining the conduct of the proceedings involves making decisions about how the proceedings are to be conducted. The breadth of the provision necessarily includes deciding what steps may be taken, including whether access might be given to material produced under subpoena, or objection taken to subpoena.
While it is not explicitly stated, the consideration takes place within the context of the character of the Court. When a claim is made to a court, and that claim is within jurisdiction (as the Applicant’s is here) then the Court has both the authority and duty to decide. That claim is to be determined on the basis of relevant evidence, the receipt of which is constrained by the Evidence Act and procedural considerations and access to which is conditioned by the Act, the Rules and the inherent powers of the Court. [4] It is a serious matter to constrain a party from obtaining relevant material in support of that party’s case.
[4] Mark Leeming, Authority to Decide: The Law of Jurisdiction in Australia (The Federation Press: 2012) 2.
At least three issues of principle arise. There is a public interest in having proceedings determined based upon relevant evidence.[5] It is in the child’s interests to have the correct decision made as to what is in her best interests, being a decision made on relevant evidence. The impact upon the child is also a mandatory consideration.
[5]Baker v Campbell (1983) 153 CLR 52 at 66 per Gibbs CJ.
Where the conduct of the proceedings issue being considered relates to the manner of the conduct of the proceedings, for example, whether a matter can be determined without the physical attendance of the parties, it might be supposed that there is little to push against a decision to optimise the procedure in favour of a reduction of impact upon the child.
Where the matter goes to the substance of the proceedings, for example, the exclusion of material relevant to the proceedings, which it may also be in the interests of the child to obtain, there is a significant push against taking the course that will exclude access to the material to protect the child from the adverse consequences of there being access to the material.
Conclusion
Unlike in the cases that confronted Berman J and McClelland J, there was evidence directly going to the potential impact on the child.
In this case, Ms RR gave evidence and was cross-examined as to the impact upon the child. The key impacts upon the child of the application are that it is potentially destabilising of the child, undermines her current therapeutic relationship and potentially her capacity to develop future therapeutic relationships in the context of, again potentially, needing them, given the issues that she has faced.
It is access to the subpoenaed material that may cause the consequences spoken of by Ms RR. This matter supports Ms RR’s objection.
While the obtaining of information from Ms RR has the potential adverse consequences identified above, relevant information is the prerequisite for determining, in the mother’s litigation, what is in the child’s best interest.
There is good reason to consider that it is possible or probable that information obtained in the therapeutic process that formed part of the orders causing the change in residence, and obtained in the context of the child living with the father and not seeing the mother, will bear upon the mother’s overall application and, in particular, on whether it is justified that there be further assessment of the child.
It is material that has the potential to be decisive on the question of the further assessment of the child, and potentially on the ultimate question of what is in the child’s best interests. This weighs in favour of granting access, both because of the public interest and interests of the child to have a decision made in her best interests.
Despite the Mother’s apparent non participation in therapy with Ms RR and despite the potentially adverse impacts on the child identified by Ms RR, the considerations supporting the obtaining of relevant evidence mean access should be granted. That access will be conditioned on what the mother has offered, being limited to use with a therapist or potential report writer.
I certify that the preceding thirty-one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 23 November 2018.
Associate:
Date: 23 November 2018
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