Unitingcare - Unifam Counselling & Mediation & Harkiss and Anor
[2011] FamCAFC 159
•5 August 2011
FAMILY COURT OF AUSTRALIA
| UNITINGCARE – UNIFAM COUNSELLING & MEDIATION & HARKISS AND ANOR | [2011] FamCAFC 159 |
| FAMILY LAW - POINT OF LAW – The parties consented to the disclosure by the appellant, a provider of family counselling services, of communications made during the course of family counselling – The appellant objected to the production of those communications pursuant to a subpoena directed to it – Established that s 10D(3) did not empower the learned Federal Magistrate to order the appellant to produce the documents referred to in the subpoena – Nor did s 69ZX empower the learned Federal Magistrate to order the appellant to produce the documents referred to in the subpoena – Whilst s 10E(2) of the Act may have empowered the learned Federal Magistrate to make the order, the failure of the subpoena to seek production of documents falling within those provisions deprived the learned Federal Magistrate of that source of power – Leave to appeal granted and the appeal allowed – The order requiring production pursuant to the subpoena discharged and the subpoena set aside. |
| Family Law Act 1975 (Cth); ss 10D; 10E; 69ZX Acts Interpretation Act 1901 (Cth); ss 15AA; 15AB; 33 |
| Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Trapp v Vonne [2009] FMCAfam 497 Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility Bill) 2005 (“REM”) |
| APPELLANT: | UnitingCare - Unifam Counselling & Mediation |
| FIRST RESPONDENT: | Mr Harkiss |
| SECOND RESPONDENT: | Ms Beamish |
| INDEPENDENT CHILDREN’S LAWYER: | Williamson Isabella Lawyers |
| FILE NUMBER: | WOC | 553 | of | 2010 |
| APPEAL NUMBER: | EA | 71 | of | 2011 |
| DATE DELIVERED: | 5 August 2011 |
| PLACE DELIVERED: | Sydney |
| PLACE HEARD: | Sydney |
| JUDGMENT OF: | Coleman J |
| HEARING DATE: | 2 August 2011 |
| LOWER COURT JURISDICTION: | Federal Magistrates Court |
| LOWER COURT JUDGMENT DATE: | 26 May 2011 |
| LOWER COURT MNC: | [2011] FMCA 27 |
REPRESENTATION
| COUNSEL FOR THE APPELLANT: | Ms Rees SC |
| SOLICITOR FOR THE APPELLANT: | Watts McCray Lawyers |
| COUNSEL FOR THE FIRST RESPONDENT: | No appearances |
| SOLICITOR FOR THE FIRST RESPONDENT: | R & M Legal Solicitors & Attorneys |
| COUNSEL FOR THE SECOND RESPONDENT: | No appearances |
| SOLICITOR FOR THE SECOND RESPONDENT: | Dobinson Davey Clifford Simpson |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Ms Volk |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Williamson Isabella Lawyers & Public Notaries |
Orders
That leave to appeal be granted.
That the appeal be allowed.
That order 1 made by the Federal Magistrate Altobelli on 26 May 2011, as varied on 2 June 2011, be discharged and the subpoena to produce documents directed to UnitingCare - Unifam Counselling & Mediation filed on 16 May 2011 be set aside.
That the Court grants to the Appellant a costs certificate pursuant to the provisions of s.9 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the Appellant in respect of the costs incurred by the Appellant in relation to the appeal.
That the Court grants to the ICL a costs certificate pursuant to the provisions of s.6 of the Federal Proceedings (Costs) Act 1981 being a certificate that, in the opinion of the Court, it would be appropriate for the Attorney-General to authorise a payment under that Act to the ICL in respect of the costs incurred by the ICL in relation to the appeal.
IT IS NOTED that publication of this judgment under the pseudonym UnitingCare -Unifam Counselling & Mediation & Harkiss and Anor is approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
| THE FULL COURT OF THE FAMILY COURT OF AUSTRALIA AT SYDNEY |
Appeal Number: EA 71 of 2011
File Number: WOC 553 of 2010
| UnitingCare - Unifam Counselling & Mediation |
Appellant
And
| Mr Harkiss |
First Respondent
And
| Ms Beamish |
Second Respondent
And
| Independent Children’s Lawyer |
REASONS FOR JUDGMENT
Introduction
By application filed 1 June 2011 UnitingCare - Unifam Counselling & Mediation (“Unifam”) sought leave to appeal, and if leave be granted, appealed against an order made by Federal Magistrate Altobelli on 26 May 2011 which provided:
1.UnitingCare is to produce the documents referred to the relevant subpoena within 7 days.
The subpoena to which the learned Federal Magistrate referred sought the production of:
2.All records in relation to [MS BEAMISH] AND [MR HARKISS] including any reports or allegations, counselling notes, referrals, and file notes.
The order was subsequently varied on 2 June 2011, in ways which do not have relevance for present purposes, and stayed on 3 June 2011.
Before this Court, Senior Counsel for Unifam conceded that:
5.… had the subpoena, on its terms, sought the production of any document or documents recording an admission or disclosure that a child has been abused or is at risk of abuse, then those documents only would be produced, unless the exception in S 10E(2) of sufficient evidence from other sources, could be satisfied.
Similarly, there will be documents in the file of the family counsellor which do not relate to:
“a communication made to the counsellor whilst he counsellor is conducting family counselling”.
Such documents might include a letter from a party refusing to attend, arrangements for appointments. Those documents would be compellable. [Appellant’s Summary of Argument, page3, par 5].
Without being critical of those representing Unifam before the learned Federal Magistrate, had that position been advocated then, the present application may not have been necessary.
Counsel for the ICL resisted Unifam’s application and sought to maintain the orders of the learned Federal Magistrate. When Unifam’s objection to the subpoena was argued before the learned Federal Magistrate on 25 May 2011, Counsel then appearing for the ICL made no submissions either in support of, or opposition to the subpoena to Unifam.
Mr Harkiss (“the father”), on whose instructions the subpoena to Unifam appears to have been issued, was not represented and did not appear on the hearing of Unifam’s application to this Court. Nor did Ms Beamish (“the mother”), who, although it is less than entirely clear, may have participated in the proceedings before the learned Federal Magistrate.
Although invited to do so, the Commonwealth Attorney General has not been represented before, or made submissions to this Court.
It is common ground that the decisions of the High Court in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 and of the Full Court in this Court in Rutherford v Rutherford (1991) FLC 92-255 articulate the legal principles which govern Unifam’s application for leave to appeal.
Sensibly, Counsel for both parties invited the Court to hear the application, and if it be granted, the appeal together. Correctly in the Court’s view, both parties accepted that, if any of Unifam’s proposed challenges to the decision of the learned Federal Magistrate was established, the discretion to grant leave to appeal would be enlivened, and the appeal allowed.
Given that the hearing of the substantive proceedings will apparently resume before the learned Federal Magistrate on 8 August 2011, it has been necessary for the Court to deliver its judgment urgently. Hopefully, correctness has not thereby been compromised.
The Reasons for Judgment of the learned Federal Magistrate of 26 May 2011 provide background to, and context for the proceedings in this Court. It is common ground that there were, on 26 May 2011, and continue to be, parenting proceedings within Part VII of the Family Law Act 1975 (Cth) (“the Act”), pending in the Federal Magistrates Court.
The Decision of the Federal Magistrate
Debate before the learned Federal Magistrate centred on ss 10D and 10E of the Act. Debate before this Court more extensively and rigorously traversed the scope of these sections than was the case before the learned Federal Magistrate, and encompassed the effect of s 69ZX, which was not agitated before his Honour.
This Court has had the benefit of the appearance of Senior Counsel, most capable counsel for the ICL, and comprehensive written submissions from each of them. The learned Federal Magistrate was not so benefitted.
It is convenient at this point to set out the terms of s 10D, which provided:
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)Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961.
(8)In this section:
"communication" includes admission.
It is also convenient to now set out the terms of ss 10E (1) and (2), which relevantly provided:
(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.
The learned Federal Magistrate did not accept the contention on behalf of Unifam that, if s 10D(3) of the Act was enlivened, Unifam retained a discretion in relation to disclosure of communications falling within the scope of the section. It is not, and has not been in contest that “consent” had been given by the parties, who fell within the terms of s 10D(3)(a). Nor is it in contest that the documents referred to in the subpoena to Unifam would contain a “communication”, or communications, made to a family counsellor in the course of the conduct of family counselling.
Although he did not express his conclusion in such terms, the learned Federal Magistrate effectively concluded that “may” in s 10D(3) of the Act meant “must”, and that, the parties’ consent to disclosure having been given, Unifam had no discretion to disclose or not disclose communications made to one of its family counsellors in the course of family counselling. [Reasons for Judgment, pars 4 & 5].
His Honour also concluded that, even if the parents “did not consent to the disclosure” he would have “ordered the same under s 10D(3)(b)(ii)”. [Reasons for Judgment, par 6].
Unifam’s other contention before the learned Federal Magistrate, although not expressed in precisely such terms, was that, as any “communication” produced pursuant to s 10D could not be admissible in evidence, requiring Unifam to produce it for the Court in response to a subpoena issued to it for such production constituted an abuse of the Court’s processes.
Whilst acknowledging that it did not follow that production under s 10D(3) inevitably lead to admissibility under s 10D(2), the learned Federal Magistrate concluded that “neither does it follow that possible inadmissibility under s 10E should prevent disclosure under s 10D(3)”. [Reasons for Judgment, par 8].
The Issues on Appeal
The questions which this Court must answer can be summarised as:
(i)Did s 10D(3) empower the learned Federal Magistrate to order Unifam to produce the documents referred to in the subpoena?
(ii)Did s 69ZX empower the learned Federal Magistrate to order Unifam to produce the documents referred to in the subpoena?
(iii)Did s 10E(2) empower the learned Federal Magistrate to order Unifam to produce the documents referred to in the subpoena?
Did s 10D(3) empower the learned Federal Magistrate to order Unifam to produce the documents referred to in the subpoena?
This issue was articulated in grounds 5 to 7 of Unifam’s proposed Notice of Appeal, which provided:
5.This his Honour erred in concluding that the consent of the participant parties to the disclosure of communications that occurred in their family counselling was a sufficient basis for overriding the objections of the family counselling organisation, namely UnitingCare (Unifam Counselling & Mediation).
6.That his Honour erred as a matter of law in finding that a family counsellor does not retain a discretion pursuant to Section 10D(3) of the Family Law Act 1975 (Cth) whether or not to disclose a communication made to a counsellor while that counsellor is conducting family counselling, independent of the consent of the parties.
7.That his Honour erred as a matter of law in finding (if he did) that a family counselling organisation such as UnitingCare (Unifam Counselling & Mediation) does not have an interest in preventing disclosure of its files independently of the parties to the family counselling.
Senior Counsel for Unifam submitted that, having regard to the terms of s 10D(3)(a), there could be no doubt in the circumstances of this case that the family counsellor could disclose communications made to her by both parties to the marriage. That contention is not disputed. It was submitted however that, if the family counsellor declined to voluntarily disclose the communications, he or she could not be required to do so by the parties or the Court.
It was submitted by Senior Counsel for Unifam that “may” in s 10D(3) should be given its usual meaning, which clearly imports the discretion to disclose or not disclose communications made to it in the course of family counselling. It was accordingly submitted that nothing in s 10D(3) empowered the learned Federal Magistrate to require Unifam to produce the documents recording communications if, as undoubtedly was the case, Unifam did not wish to do so.
Senior Counsel for Unifam also submitted that the learned Federal Magistrate had erred in concluding that, in the circumstances of this case, s 10D(3)(b)(ii) provided the power to make an order requiring Unifam to produce the documents containing communications made to a family counsellor by the parties to the marriage. The terms of s 10D were submitted to preclude so concluding.
Senior Counsel for Unifam relied upon a number of provisions of the Revised Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility Bill) 2005 (“REM”) with respect to the Family Law Amendment (Shared Parental Responsibility Bill) Act 2006, in support of the interpretation of s 10D(3) of the Act for which she contended. So doing was in accordance with s 15AB(2)(e) of the Acts Interpretation Act 1901 (Cth) (“the Acts Interpretation Act”).
In his reasons, the learned Federal Magistrate also referred to provisions of the REM. His Honour was clearly entitled to do so, by virtue of s 15AB(2)(e) of the Acts Interpretation Act.
It appears that the REM was subsequently amended after publication in order to amend an error with the paragraph numbering. Accordingly, to minimise the potential for confusion, this judgment will refer to the amended paragraph references.
Senior Counsel for Unifam submitted that reliance upon the REM, and particularly paragraphs 495 and 496 thereof, did not support his Honour’s construction of s 10D(3) of the Act.
Paragraphs 495 and 496 of the REM provided:
495.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.
496.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.
Senior Counsel for Unifam also relied upon the contents of paragraph 493 of the REM which provided:
493.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.
In support of her contention that ‘“may” always means “may”’, Senior Counsel for Unifam relied upon s 33 of the Acts Interpretation Act which provided:
(2A)Where an Act assented to after the commencement of this subsection provides that a person, court or body may do a particular act or thing, and the word may is used, the act or thing may be done at the discretion of the person, court or body. (original emphasis)
It was thus submitted that the words “a family counselor [sic] may disclose” in s 10D(3) of the Act authorised disclosure, but reposed a discretion to decline to disclose in the family counsellor, which discretion was “to be exercised by the family counsellor and not the court”. [Appellant’s Summary of Argument, par 8]. Further, it was submitted that “nothing in s 10D(3) acts to remove the discretion to disclose from the family counselor [sic],” which the use of “may” in the legislation imports. [Appellant’s Summary of Argument, par 9, page 10].
In support of her defence of the learned Federal Magistrate’s conclusion with respect to s 10D, Counsel for the ICL relied significantly on the provisions of Division 12A of the Act which, it is not in doubt, were enacted at the same time as were ss 10D and 10E of the Act in their present terms.
The submissions of Counsel for the ICL were effectively that the construction of s 10D urged on behalf of Unifam was “inconsistent with the provisions of Division 12A that gives the Court the power to make such orders, that would then permit the person compelled by the subpoena to refuse to comply with it, thereby frustrating such orders”. [ICL’s Summary of Argument, par 22, page 7]. The Court will engage with that issue later in these reasons.
Section 10D(1) prohibits disclosure by a family counsellor of communications made to him or her in the course of “family counselling, unless the disclosure is required or authorised by this section”. The clear intention of s 10D, not expressly or impliedly contradicted by any provision of the section to which this Court has been referred, is that if, and only if a provision of s 10D of the Act is enlivened can, or must, communications made to a family counsellor in the course of family counselling be disclosed. The REM is consistent with so concluding.
The terms of s 10D(1) raise a significant obstacle to acceptance of Counsel for the ICL’s contention that other provisions of the Act empowered the learned Federal Magistrate to make the order he did on 26 May 2011 with respect to the subpoena directed to Unifam. It is difficult to accept that, unless “authorised” pursuant to the provisions of s 10D, or being communications falling within s 10E(2), communications made to a family counsellor during the course of family counselling can be disclosed. Section 10D can thus be suggested to “cover the field” in relation to disclosures of communications made to a family counsellor in the course of family counselling.
Section 10D(2) obliges a family counsellor to disclose communications in the circumstances there described. Such disclosures are of the kind referred to in s 10D(1) as “required”. Section 10D(4) and 10D(5) refer to disclosures which are described as being “authorised” in s 10D(1).
In the Court’s view, s 10D(3) provides for disclosures which are “authorised” rather than “required”. Interpreting the section in the way urged by Counsel for the ICL would endow “may” with a meaning quite different from, and inconsistent with its normal meaning, contrary to the provisions of s 33 of the Acts Interpretation Act. If the legislative intention had been to require disclosure in the circumstances described in s 10D(3), “must” would have appeared instead of “may”.
In the circumstances of this case, s 10D(3)(a) was potentially enlivened, both persons who made the relevant communications being over eighteen and having consented to the counsellor disclosing communications made by them to him or her in the course of family counselling. In those circumstances, the family counsellor “may” have disclosed the communications. He or she was not thereby obliged to do so. Nothing in s 10D(3), or elsewhere in s 10D, empowered the learned Federal Magistrate to require the family counsellor to disclose the communications made to him or her.
Section 10D of the Act creates and defines the privilege attaching to communications made to a family counsellor in the conduct of family counselling, and articulates the circumstances in which that privilege may, or must be waived. Given the absence of legislative constraint upon the persons or entities to whom, or to which disclosed communications may be published, failure to observe the legislative imperatives of s 10D could have quite unintended consequences, and potentially adverse implications for the welfare of children referred to in, or connected with such communications. The Court’s construction of s 10D gains additional support from s 15AA of the Acts Interpretation Act.
To the extent that the learned Federal Magistrate purported to rely upon s 10D(3)(b), with respect to him, the facts of this case reveal that it could not be enlivened. The reference to “a court” in s 10D(3) refers only to communications made by “a child under 18”, and not to the parties to the marriage in this case. Section 10D(3)(a) does not refer to, or invoke the intervention of “a court”. That cannot have been inadvertent. If the legislative intention had been that a Court could override the wishes of the adults falling within s 10D(3)(a), or the family counsellor, it would have so provided in the legislation. The Court’s construction is consistent with the terms of s 10D, and although probably not needing to be, is supported by the provisions of the REM to which the Court has referred.
The Court is not persuaded that the learned Federal Magistrate was empowered by s 10D(3) to make the order he did with respect to the subpoena directed to Unifam.
Did s 69ZX empower the learned Federal Magistrate to order Unifam to produce the documents referred to in the subpoena?
It was submitted on behalf of the ICL that s 69ZQ of the Act empowered the learned Federal Magistrate to make the order he did with respect to the subpoena directed to Unifam.
With respect to Counsel for the ICL, the Court does not perceive any provision of s 69ZQ, which is headed “General duties” to provide an apparent source of power for the order made by the learned Federal Magistrate with respect to the subpoena directed to Unifam.
It was also submitted by Counsel for the ICL that the submission on behalf of Unifam that the family counsellor “retains a discretion, even once the parties have consented to the disclosure, and in the face of an order to produce, is again, inconsistent with the power of the court vested by virtue of the provisions of Division 12A and in particular the provisions of s 69ZR”.
Counsel for the ICL submitted that s 69ZX(1)(e) of the Act also empowered the learned Federal Magistrate to order Unifam to comply with the subpoena directed to it.
Section 69ZX(1)(e) of the Act provided:
Court's general duties and powers relating to evidence
(1)In giving effect to the principles in section 69ZN, the court may:
…
(e) ask questions of, and seek evidence or the production of documents or other things from, parties, witnesses and experts on matters relevant to the proceedings.
Senior Counsel for Unifam submitted that s 69ZX(1)(e) did not provide a source of power for the order of 26 May 2011. It was submitted that the terms of the section did not expressly or impliedly create such a power and that, if they did, they could not prevail over the specific provisions of s 10D of the Act.
Section 69ZX is concerned with the “Court’s general duties and powers relating to evidence”. The section provides that “in giving effect to the principles in section 69ZN, the court may” give the directions therein referred to. In the context of this application, it was submitted on behalf of the ICL that the Court could seek the production of documents from a third party such as Unifam. Section 69ZN is concerned with “Principles for conducting child-related proceedings”.
The REM provides the following explanation of s 69ZX(1):
Section 69ZX – Court’s general duties and powers relating to evidence
401.Section 69ZX sets out the court’s general duties and powers relating to evidence.
402.Subsection 69ZX(1) sets out a list of actions that the court may carry out in giving effect to the five principles for conducting child-related proceedings in section 69ZN. This provision supplements the duties in section 69ZQ which must be followed in giving effect to the principles and to ensure active management of children’s matters to minimise the effect of the proceedings on children and to promote a cooperative parenting relationship between parents.
403.The list of actions in subsection 69ZX(1) includes the court giving directions or making orders about:
· the matters in relation to which the parties are to present evidence
· who is to give evidence in relation to each remaining issue
· how particular evidence is to be given, and
· if the court considers that expert evidence is required:
- the matters in relation to which an expert is to provide evidence
- the number of experts who may provide evidence in relation to a matter, and
- how an expert is to provide the expert’s evidence.
404.Paragraph 69ZX(1)(e) also gives the court the power to question and seek evidence or the production of documents or things from parties, witnesses and experts on matters relevant to the proceedings.
It is readily apparent that the section refers to “seeking” rather than “requiring”. The use of that term cannot have been inadvertent.
Section 69ZX refers to the “principles for conducting child related proceedings” in s 69ZN of the Act. The Court does not interpret any of those “principles” as attempting to override any express provision of the Act.
General principles of statutory interpretation provide support for the contentions of Senior Counsel for Unifam. Where an Act contains both specific and general provisions that appear on their face to both be applicable to a specific situation, the presumption is that the general provisions will yield to the specific provisions. In D C Pearce and R S Geddes, Statutory Interpretation in Australia (Butterworths, 7th ed, 2011) the learned authors suggest that:
… An Act may well contain provisions of a general nature and also provisions relating to a particular subject matter. It is commonsense that the drafter will have intended the general provisions to give way should they be applicable to the same subject matter as is dealt with specifically: Refrigerated Express Lines (A’Asia) Pty Ltd v Australian Meat and Live-stock Corp (1980) 29 ALR 333 at 347.
…
However, the general rule … that, where possible, all words in an Act should be given effect must not be overlooked. The generalia specialibus approach should only be called in aid ‘where there are two inconsistent provisions which cannot be reconciled as a matter of ordinary interpretation’: Parcell v Electricity Commn of New South Wales (1985) 60 ALR 652 at 657; where ‘contrariety is manifest’: Reseck v FCT (1975) 133 CLR 45 at 53. See also Gunner v Minister for Immigration and Ethnic Affairs (1997) 50 ALD 507. (at page 147)
The Court is not persuaded that s 69ZX purports to empower the Court to require the production of documents in the circumstances of this case. If it does, then it could not in the Court’s view override the clear expressed terms of s 10D of the Act.
The Court is not persuaded that the provisions of s 69ZX are inconsistent and irreconcilable with the provisions of s 10D. As their terms make clear, the sections are directed to quite different issues. Section 69ZX suggests how powers created by other provisions of Part VII might be exercised, rather than conferring powers. However, to the extent that the provisions are, or may be, inconsistent and/or irreconcilable, the presumption that the general provisions of s 69ZX should “give way” to the specific provisions of s 10D should be applied.
Did s 10E(2) empower the learned Federal Magistrate to order Unifam to produce the documents referred to in the subpoena?
In support of her contention that the documents referred to in the subpoena directed to Unifam could not be admissible, having regard to the terms of s 10E of the Act, and thus not “compellable”, Senior Counsel for Unifam submitted that the exception provided for by s 10E(2) was “confined in its terms to an admission by an adult or a disclosure by a child” which “must be of a specific nature, i.e. that a child has been abused or is at risk of abuse”.
It was submitted by Senior Counsel for Unifam that the terms of the subpoena did not relate to documents potentially falling within the ambit of the exception provided for in s 10E(2) and conceded that, if they had, such documents would have been compellable.
It was further submitted that:
6.It cannot be ascertained from the judgment what material was before His Honour as to the nature of the material said to be contained in the file. If it were the case that either party had sworn affidavit evidence that disclosed what had occurred or been said in the course of family counseling [sic], then, whether or not there were objections taken, His Honour had an obligation to consider the material in the context of Section 10E and, if appropriate, reject that material. [Appellant’s Summary of Argument, par 6, page 3].
Senior Counsel for Unifam submitted that the REM made clear that s 10E of the Act largely “re-creates” the former s 19N of the Act which was considered by the Full Court in Relationships Australia v Pasternak, Pasternak and the Children’s Representative (1996) FLC 92-699 (“Pasternak”).
Senior Counsel for Unifam relied on paragraphs 502 to 506 inclusive of the REM which provided:
Section 10E Admissibility of communications in family counselling and in referrals from family counselling
502.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.
503.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.
504.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.
505.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.
506.Subsection 10E(3) clarifies that the information necessary for the provision of a certificate by a family counsellor under paragraph 16(2A)(a) of the Marriage Act 1961 is not prevented by this provision.
In Pasternak, in a series of paragraphs upon which Senior Counsel for Unifam relied, the Full Court said (at 83,383):
Admissibility and discovery
The final matter that needs to be canvassed is the distinction between the admissibility of the evidence and the discovery process. His Honour seems to have taken the view that the fact that the information was inadmissible was irrelevant to the question whether it should be disclosed to the legal representatives of the parties. This issue was recently considered by Branson J of the Federal Court of Australia in Trade Practices Commission v Port Adelaide Wool Company Pty Ltd and Sinclair (1995) 132 ALR 645 .
The proceeding before her Honour in that case was an application by the respondents for an order (under Order 15, rule 11 of the Federal Court Rules) that the applicant produce for their inspection before trial certain documents which had been discovered by the applicant in its list of documents, but to which it claimed that client legal privilege attached. Her Honour refused to make the order sought by the respondents in respect of those documents which she held could not be adduced in evidence over the objection of the applicant in reliance upon ss 118 or 119 of the Evidence Act 1995 (Cth) (which deal with client legal privilege). However she did so, not on the basis that the documents were privileged from production (a point which she found it unnecessary to decide), but on the basis that she was not satisfied that the production of the documents at that time was ``necessary'', as required by Order 15, rule 15 of the Federal Court Rules and as that requirement was explained by the Full Court of the Federal Court in Australia v Northern Land Council & Anor (1991) 103 ALR 267 at 291.
In coming to the conclusion her Honour first noted (at 649) that, as stated by the Full Court in Australia v Northern Land Council & Anor (supra), at 290:
``[t]he documents required to be discovered by O 15 of the Federal Court Rules are not limited to documents which would be admissible in evidence.''
Her Honour then continued:
``However, the fact that evidence will not be able to be adduced, over objection, if it would result in disclosure of the contents of a confidential document will, in my view, ordinarily be telling as to whether the production of that document can be said to be necessary for the fair disposal of the proceedings.
It would be a curious result, in my view, if a party to proceedings in this Court could be required to produce for inspection by the other party or parties during pre-trial procedures, or indeed, in a court a confidential document prepared, for example, for the dominant, but not the sole purpose of a lawyer providing legal advice to that party, notwithstanding that at trial that party could successfully object on the ground of client legal privilege to any evidence being adduced which would result in the disclosure of the contents of the document. That is, logic at least would seem to suggest that the ambit of client legal privilege should be constant throughout the litigation process. That logic is reflected in the fact that historically legal professional privilege with respect to the contents of documents has had the same ambit whether invoked as a privilege against production of documents outside of the courtroom as part of the discovery process or as a privilege against disclosing the contents of such documents within the courtroom either by their physical production or by disclosure of their contents in response to questions asked in cross examinations.
As the High Court pointed out in Grant and Downs [(1976) 135 CLR 674] the public interest that the trial should be conducted in circumstances in which all relevant documents are available to the parties has always given way to the paramount public interest reflected in what has historically been known as legal professional privilege. Now that this paramount public interest has, by the Act, been extended in this Court, so far as the laws of evidence are concerned by the statutory adoption of a dominant purpose test (as opposed to the common law sole purpose test), the same test in my view, will ordinarily be adopted for the purposes of Order 15 of the Federal Court rules. That is, the Court will not in my view, ordinarily be satisfied that an order for the production of a document is necessary if evidence of the contents of such document could not be adduced at trial over the objection of the party discovering the document on the ground of client legal privilege.''
Whilst her Honour's views therein expressed (that logic suggests that the ambit of client legal privilege should be constant throughout the litigation process) is strictly obiter, so far as the point under consideration here is concerned, we nevertheless find it quite persuasive. Moreover, the ratio of her Honour's decision contained in the final sentence of the passage quoted above is particularly relevant to the circumstances of this case where what is sought by a party is the production for inspection by a non-party of that non-party's private, confidential records. As we indicated at the outset of this judgment, the proper course for obtaining such production pre-trial is by an interlocutory application pursuant to Order 20, rule 7 of the Family Law Rules.
Upon the hearing of such an application, the Court, before making the order sought, must be satisfied that ``it is just that the applicant or another party to the proceedings... should inspect such document'' (Order 20, rule 8). Just as her Honour considered that, ordinarily, it could not be said to be ``necessary'' for a document to be produced if evidence of its contents could not be adduced at trial over the objection of the party producing it, so we are of the view that, ordinarily, it could not be considered ``just'', within Order 28, rule 8, or ``necessary for disposing fairly of the proceedings or saving costs'', within Order 28, rule 15 of the Family Law Rules that such a document be produced in those same circumstances by a non-party for inspection by a party. It matters not that in that case the basis for objection to the admissibility of the document would be client legal privilege under ss 118 or 119 of the Evidence Act, whilst in this case it is the specific statutory prohibition contained in s 18(2) of the Family Law Act.
Senior Counsel for Unifam also relied upon the decision of Reithmuller FM in Trapp v Vonne [2009] FMCAfam 497 in which it was said:
25.The material subpoenaed does not, at this time, appear to be prima facie admissible under s.10E. In this case, it appears clear that the wife is aware of what may have been said to the counsellor and that is the reason that she is pursuing an application to obtain the counsellor's records. It cannot be said that the information contained within the counsellor's documents would enable her to better prepare her case in that she is already aware of the substance of the content, assuming that it accurately reflects what was said.
Reliance was also placed by Senior Counsel for Unifam upon:
9.The decision in National Employer’s Mutual General Association v Waind and Hill [1978] 1 NSWLR 372 to the effect that:
The only legitimate purpose of requiring the production, and permitting the inspection, of a stranger’s documents can be to add, in the end, to the relevant evidence in the case.
Was cited with approval in White and Tulloch v White (1995) 19 FamLR 696 and the Full Court in Hatton and Attorney General of the Commonwealth of Australia et al [2000] FamCA 892 that the case remains persuasive authority in setting aside a subpoena.
In Hatton the Full Court also Id [sic] (at 58) that the onus was on the person seeking production of the documents to show that they had apparent relevance to the case, not the person resisting the production of documents. [Appellant’s Summary of Argument, par 9, page 7].
Counsel for the ICL submitted that only by inspecting the documents sought from Unifam could it be ascertained whether or not the communications recorded in them potentially fell within the terms of s 10E(2) of the Act. On the basis that they might do so, and thus be potentially admissible, it was submitted that Senior Counsel for Unifam’s contention that the documents could not be required to be produced, and that, as such, the subpoena for their production was oppressive, could not be accepted.
The terms of ss 10E(1) and (2) are instructive. It is clear that, unless, and even then only in the circumstances there referred to, admissions or disclosures were made in the terms referred to in s 10E(2)(a) or (b), there is an absolute prohibition, in all courts, on the admissibility of evidence of “anything said, or any admission made, by or in the company of”, in this case, a family counsellor conducting family counselling.
There is accordingly force in the contention of Senior Counsel for Unifam that, if the purpose for which the Unifam documents were subpoenaed was to obtain evidence potentially falling within the terms of s 10E(2), and, in fairness it should be acknowledged that the ICL did not cause the subpoena to Unifam to be issued, then it was necessary, given the clear terms of ss 10E(1) and (2), for the subpoena to be framed in the terms of s 10E(2). Whilst so doing would have obliged Unifam to produce such documents as it had fitting that description, they would not necessarily have been admissible having regard to the concluding words of s 10E(2), but that would be a matter for debate at the time they were sought to be tendered.
In reality, and without criticising the ICL, who did not draft the subpoena directed to Unifam, the subpoena can be seen, particularly having regard to the terms of s 10E of the Act, as in the nature of a “fishing expedition”, or request for discovery by a third party.
The law in relation to the use of subpoenae as a means of obtaining discovery and inspection is not in doubt. In Hennessy v. Wright (No. 2) (1980) 24 QBD 445 at 448 Lord Esher described the conduct which subsequently gave rise to the concept of a “fishing expedition” as occurring where:
… the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present.
In Commissioner for Railways v Small (1938) 38 SR(NSW) 564 at 574-5, Jordan CJ said:
Where the subpoena is addressed to a party, it is still necessary that it should state with reasonable particularity the documents which are to be produced: Attorney-General v Wilson 9 Sim 526 at 529; Earl of Powis v Negus [1923] 1 Ch 186 at 190. It is true that a party, unlike a stranger, can be required to give discovery; but it is not legitimate to use a writ of subpoena duces tecum as a substitute for an application for discovery of documents, or as an alternative to an application for further and better discovery. Discovery applications should be made at the proper time and place. It would greatly impede the trial of actions at nisi prius, and impose an intolerable burden upon the presiding judge, if he were required form time to time to suspend proceedings and wade for himself through masses of documents for the purpose of endeavouring to determine whether any of them are relevant. Especially is this so when the documents may be called for while the case is still at the stage when it is difficult or perhaps impossible for the judge to know what may become relevant and what may not. In the absence of special circumstances, for example, Griebart v Morris [1920] 1 KB 659, a party is no more entitled to use a subpoena duces tecum than he is a summons for interrogatories, for the purpose of “fishing”, that is, endeavouring, not to obtain evidence to support his case, but to discover whether he has a case at all (Hennessy v Wright 24 QBD 445 at 448), or to discover the nature of the other side's evidence: Griebart v Morris [1920] 1 KB 659 at 666. Even if the documents are specified, a subpoena to a party will be set aside as abusive if great numbers of documents are called for and it appears that they are not sufficiently relevant: Steele v Savory [1891] WN 195.
In National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372 at 382, Moffitt P said:
It is oppressive to place upon a stranger the obligation to form a judgment as to what is relevant to the issue joined in a proceeding, to which he is not a party. Hence it is an abuse of the use of a subpoena to impose this obligation. It follows that it is an abuse to use any subpoena, i.e. even to a party to obtain discovery. This was the reasoning in Small's case. Of course, discovery as such is otherwise available to a party. It follows that a subpoena can only properly be used for the production of documents described in particular or general terms which does not involve the making of such a judgment. (footnotes omitted)
To the extent that the documents which Unifam may have produced could have come within the terms of s 10E(2), the subpoena does not adequately identify them. It readily could have. There is a material distinction between seeking production of documents which, if they exist, can be readily identified and produced in circumstances where such documents may be admissible in evidence, and seeking the production of unspecified documents in the hope that, when produced, they may reveal something capable of being admissible in evidence. The former course is permissible according to general law, and s 10E of the Act. The latter offends both. Given the terms of s 10E, the subpoena to Unifam, drawn in the terms in which it was, can be seen as oppressive.
As noted at the outset of these Reasons, it was squarely and properly conceded by Senior Counsel for Unifam that, had the subpoena been expressed in the terms of s 10E(2)(a) and (b), and Unifam held any documents falling within those provisions, they would have been produced. Having regard to the terms of s 10D(2), the scope for gaining disclosure of “communications” made to a family counsellor during the conduct of family counselling in reliance upon s 10E(2) would appear to be limited.
Although they would not necessarily have thereby been admissible, the exception created by s 10E(2) of the Act may have empowered the learned Federal Magistrate to make the order he did on 26 May 2011. The failure of the subpoena to seek production of documents falling within those provisions deprived the learned Federal Magistrate of that source of power.
Accordingly, appealable error having been demonstrated, leave to appeal should be granted and Unifam’s appeal allowed.
Costs
Unifam and the ICL sought costs certificates in the event of Unifam’s appeal being allowed.
The issues raised in the application and appeal justify a costs certificate issuing to each party.
I certify that the preceding seventy seven (77) paragraphs are a true copy of the reasons for judgment of Justice Coleman delivered on 5 August 2011.
Associate:
Date: 05.08.11
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