WALLACE and WAGNER

[2021] FCWA 205

JURISDICTION : FAMILY COURT OF WESTERN AUSTRALIA

ACT: FAMILY COURT ACT 1997

LOCATION: PERTH

CITATION: WALLACE and WAGNER [2021] FCWA 205

CORAM: O'BRIEN J

HEARD: 5 NOVEMBER 2021

DELIVERED : Ex tempore

PUBLISHED : 4 NOVEMBER 2022

FILE NO/S: [Redacted]

BETWEEN: MR WALLACE

Applicant

AND

MS WAGNER

Respondent

Catchwords:

EXPERT WITNESSES – Where, after the conclusion of the relevant proceedings, the father seeks the discharge of injunctions granted restraining the parties from making any complaint to a professional body or association concerning the conduct of the Single Expert or the content of her report without leave – Where the application is opposed by the mother – Where the Single Expert is given the opportunity to give evidence and make submissions in relation to the application – Where the purpose of the injunction when granted was the maintenance of the integrity of proceedings which are now completed – Where arguments that public policy considerations support a continuation of the injunction are unpersuasive –Injunction discharged.

Legislation:

Family Court Act 1997 (WA)
Family Court Rules 2021 (Cth)
Health and Disability Services (Complaints) Act 1995 (WA)
Health Practitioner Regulation National Law (WA) Act 2010
Jurisdiction of Courts (Cross-vesting) Act 1987 (WA)

Category: Not Reportable

Representation:

Counsel:

Applicant	:	Self-Represented Litigant
Respondent	:	Lawyer A

Solicitors:

Applicant	:	Self-Represented Litigant
Respondent	:	Law Firm A

Case(s) referred to in decision(s):

Hearne v Street (2008) 235 CLR 125
Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747
R v Young [1999] NSWCCA 166
Re P’s Bill of Costs (1982) FLC 91-255
Re W Publication Application (1997) FLC 92-756
Taylor v Taylor (1979) FLC 90-674
Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31

WORDS IN SQUARE BRACKETS REPLACE WORDS USED IN THE ORIGINAL JUDGMENT – PARTIES’ NAMES AND IDENTIFYING DETAILS HAVE BEEN CHANGED

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wallace and Wagner has been approved by the Family Court of Western Australia pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 312(b) Family Court Rules 2021 (WA)), or to record a variation to the orders pursuant to r 311 Family Court Rules 2010 (WA).

1The matter for determination is the application of [Mr Wallace] filed on 19 May 2021. He sought orders permitting him to pursue a complaint against [Dr C] arising from what he would allege to be failings in the execution of their role as Single Expert Witness ("SEW") in parenting proceedings, which were finalised by the making of consent orders on 22 July 2020. The application is brought in circumstances where there is presently in force an injunction restraining the parties to those proceedings from making any such complaint without leave of the court.

The progress of the matter to a hearing

2When the application was filed, Mr Wallace was directed to serve his former partner [Ms Wagner], who was the other party to the primary proceedings, Dr C, and the previously appointed Independent Children’s Lawyer ("ICL"), [Ms D]. It was appropriate for the application to be brought to Dr C’s attention so that they could be heard in relation to it if they chose to do so.

3Efforts were made by Mr Wallace to effect service in compliance with those directions. On 4 June 2021, Dr C wrote to the Principal Registrar with an enquiry arising out of those efforts. At my direction, the Principal Registrar replied on 8 June 2021 advising Dr C of the application filed by Mr Wallace, the date of the initially listed hearing, and of their right to respond and/or be represented at the hearing should they choose to do so.

4The application was initially listed for hearing on 26 August 2021. Dr C was unwell and unable to attend. The ICL having confirmed that she did not seek to be heard in relation to the application, the hearing was vacated and rescheduled to 8 October 2021.

5On 14 September 2021, Dr C wrote to the Chief Judge enquiring whether the court would "provide [them] with suitable legal counsel". They noted their professional commitments, including in this court, and the time involved in responding to matters raised by Mr Wallace. Dr C said that they considered the allegations by Mr Wallace to be "baseless and vexatious" but said that they would nevertheless address them. They enquired not only as to whether the court would provide them with a lawyer, but also whether the court would "intervene in [Mr Wallace’s] behaviour, or whether it [would] resile from providing any assistance."

6The Chief Judge responded promptly to Dr C’s letter on 16 September 2021. Her Honour explained the basis of the application brought by Mr Wallace and confirmed that while it was open to Dr C to respond and/or appear or be represented at the hearing, they were not compelled to do so.

7Her Honour confirmed that it is not a function of this court to fund legal representation for individuals, and recommended that Dr C seek independent advice, emphasising that it was a matter for them as to whether and/or how they responded to the application.

8Dr C attended and was represented by counsel at the hearing on 8 October 2021. Counsel, who made it clear that he did not practice in family law but was appearing at short notice to assist Dr C, sought an adjournment of the application for a period of four weeks to enable them to properly instruct other counsel. In circumstances which do not require repetition, the adjournment was granted, and the matter was listed for hearing today.

9Dr C represented themselves at the hearing today. They filed an affidavit yesterday which responded to some of the assertions made by Mr Wallace, and otherwise annexed transcripts of hearings, and correspondence common to Dr C and the parties.

10Ms Wagner instructed solicitors, who on her behalf filed on 6 October 2021 an affidavit and submissions. She was represented by her solicitor at both the hearing on 8 October 2021, and today. In response to a question from me at the hearing on 8 October 2021, counsel for Ms Wagner acknowledged that his client’s rights were not in any way potentially affected by the determination of the application of Mr Wallace; nevertheless, he declined my offer that he be permitted to withdraw, and to simply rest on the affidavit and written submissions filed, saying that his client was anxious to exercise her right to be heard. He did not then seek to make any further submissions today.

Overview of the relief sought

11Mr Wallace seeks "leave to lodge a complaint" against Dr C to the Australian Health Practitioner Regulation Agency ("AHPRA"). For that purpose, he seeks "leave to rely" on various documents listed in his application, including orders, various affidavits filed, documents produced on subpoena, a transcript, and certain correspondence. He seeks "liberty to use all documents" to file a complaint to AHPRA and to the Health and Disability Services Complaints Office ("HaDSCO").

12Mr Wallace then seeks an order that he be at liberty to "use any outcome or decision of AHPRA and/or HaDSCO to seek compensation" for monies paid to Dr C, and other services including legal fees he would say he incurred at least in part because of their report. Similarly, he seeks an order that he be at liberty to use any such outcome to seek compensation for monies paid by him to [Supervision Agency A] during a period when the children’s time with him was supervised.

13Finally, he seeks an order that "[Dr C’s] reports are no longer considered in any further FCWA or related proceedings including any Parenting Coordination with [Social Service A]", asserting that the Parenting Coordinator has been influenced against him by an acceptance of the content of the reports.

14Ms Wagner seeks the dismissal of the application.

15Dr C, properly in my view, submitted today that the question of the discharge of the injunctions is a matter for the court, rather than a matter to be actively consented to or opposed by them. That said, in their materials filed they raised at least obliquely for consideration questions of public interest as being relevant to the court’s determination. The submissions filed on behalf of Ms Wagner had raised similar questions.

16It is necessary to set out some background to the substantive proceedings to give context to what follows.

Background

17The parties began living together in a de facto relationship in early 2010. They separated under one roof in mid-2015, albeit Mr Wallace worked on a FIFO basis for a period thereafter. In November 2016, Ms Wagner obtained an interim Violence Restraining Order, the effect of which was to exclude Mr Wallace from the home. The parties did not subsequently live under one roof.

18The parties have two children [Child A] born [in 2011] and [Child B] born in [late 2013]. Proceedings were commenced by Mr Wallace in January 2017 both in relation to the children and in relation to financial matters. The ICL was appointed in March 2017, and Dr C was appointed as the SEW on 13 October 2017.

19Relevantly for present purposes, at the time of Dr C’s appointment, orders ("the injunctions") were also made by consent in the following terms:

"10.The parties and the Independent Children’s Lawyer be restrained and an injunction is hereby granted restraining each of them from providing copies of any Single Expert Report prepared for the purposes of these Proceedings, or permitting any other person to do so, to any person or entity other than their Solicitor or Counsel in these Proceedings, and in the case of the Independent Children’s Lawyer, the Director of Legal Aid (WA), without first obtaining leave of the Court.

11.The parties and the Independent Children’s Lawyer be restrained and an injunction is hereby granted restraining each of them from making any complaint to a professional body or association concerning the conduct of the Single Expert or concerning the content of the Single Expert’s Report or permitting any other person to do so, without first obtaining leave of the Court.

12.Orders 10 and 11 above shall remain in full force and effect following the completion of these proceedings."

20A central issue for a significant period during the parenting proceedings was the desire of Ms Wagner to live with the children in [Regional Town A] with her husband [Mr A]. On 15 January 2020, a Magistrate made an interim order permitting Ms Wagner to relocate to Regional Town A with the children. However, relatively shortly prior to trial Ms Wagner separated from her husband and returned with the children to Perth.

21With the assistance of the ICL the parties engaged in discussions leading to orders being made by consent finalising the parenting proceedings on 22 July 2020, which was the first day of trial. The trial then proceeded in relation to the financial case over three days, and I delivered judgment on 14 October 2020.

22The parenting orders made by consent provide for the parties to have equal shared parental responsibility, and for a progression in the children’s time with Mr Wallace on a structured basis so that from the conclusion of third term in 2020 they would live with the parties equally on a "week about" basis, with change over on Fridays. Detailed orders were also made in relation to school holidays, special occasions, communication, and other specific issues, none of which are relevant for present purposes.

23While the parenting proceedings were settled in that manner, the parties had filed their evidence for the purposes of trial and the matter was ready to proceed. As already noted, Dr C was appointed as SEW on 13 October 2017; their report was published to the parties promptly after being received by the court on 15 January 2019. Questions were then administered to Dr C by Mr Wallace’s solicitors by letter dated 8 February 2019; their responses to those questions were contained in a report annexed to an affidavit sworn on 1 March 2019. Subsequently, Mr Wallace instructed another clinical psychologist [Dr E] on 14 July 2020, he was given leave to rely on an affidavit of Dr E at trial.

24As the parenting proceedings were settled, the evidence of the primary parties in relation to parenting matters was not tested, nor were the reports of Dr C and Dr E formally admitted into evidence for the purposes of trial.

25As set out later in these reasons to the limited extent necessary, Mr Wallace is highly critical of Dr C; that underpins his current application.

Analysis of the relief sought

26Although not expressed as such, the relief sought by Mr Wallace is properly understood as being:

(a)the discharge or variation of the injunctions, so as to permit the making of a complaint against Dr C to the relevant professional body;

(b)leave to provide to the relevant professional body documents from the court file;

(c)leave to provide to the relevant professional body documents produced under subpoena;

(d)leave to provide to the relevant professional body other documents not on the court file or produced to the court under subpoena;

(e)permission from the court to seek compensation either from Dr C or some other person or body; and

(f)a prohibition against further reference to or reliance upon Dr C’s reports in any ongoing proceedings between the primary parties.

27As Mr Wallace was self-represented at the hearings before me, and I was concerned to ensure that he was not disadvantaged by any lack of clarity in the drafting of the relief he sought and that I did not misunderstand it, I confirmed with him that my understanding of the relief actually sought as summarised above was accurate.

The evidence and submissions

28In support of his application, Mr Wallace initially relied on his affidavit affirmed on 19 May 2021, an affidavit of his de facto partner [Ms F] affirmed on 5 May 2021, and an affidavit of his clinical psychologist [Ms G] affirmed on 29 April 2021. He filed a further affidavit on 21 August 2021, upon which he also sought to rely. He filed written submissions the same day. Mr Wallace filed a still further affidavit on 3 November 2021; that affidavit sought simply to contest some matters raised with me at the earlier hearing which are of no consequence for present purposes, and otherwise expand on various exchanges with Dr C. In circumstances where, as will be seen, the content of the affidavit does not affect the determination of the matters in issue, and where Dr C filed an affidavit only yesterday about which the same observation may be made, I accepted both affidavits into evidence notwithstanding their late filing.

29As will appear, much of the affidavit material relied upon by Mr Wallace is, with no disrespect to him, of little relevance to the matter actually requiring determination by this court, as distinct from an examination of the merits or otherwise of the complaint he seeks to make against Dr C.

30Nevertheless, to give context his central complaints may be summarised as follows:

(a)he draws attention to the duty of a SEW to conduct his or her functions in a timely way,[1] and asserts that Dr C failed to meet that duty;

(b)he points to what he would assert to be factual inaccuracies in Dr C’s report, which he would say led in turn to expressions of opinion without a proper factual foundation;

(c)he asserts that Dr C incorrectly concluded that he was addicted to sex and/or pornography; and

(d)he asserts flaws in methodology, in particular a lack of attention to the potential influence of the maternal grandmother, and a failure to assess and observe him with the children.

[1] Family Court Rules 2021 (Cth), rule 284.

31Ms Wagner relied on her affidavit described earlier in these reasons. The affidavit asserts her belief that the application of Mr Wallace is vexatious and "brought only to harass, defame, disrupt, and damage and intimidate [Dr C] and the system as well". She described in florid terms her view of the behaviour of Mr Wallace generally, and what she would say is his history of finding fault with various professionals over time. She otherwise responds, unnecessarily as will be seen, to various factual statements made by Mr Wallace.

32It appears that Ms Wagner’s response, commonly with elements of the application of Mr Wallace, misunderstands the role of this court. That misunderstanding includes but is not limited to her perception that the application seeks to "have the court refer [Dr C] for disciplinary action". The application in fact seeks the discharge of an injunction prohibiting Mr Wallace from himself pursuing such a complaint. The distinction is obvious, and important.

33The written submissions filed on behalf of Ms Wagner suggested that Mr Wallace "seeks the kudos and support of the Family Court to enliven his otherwise vexatious and biased attack upon [Dr C]". They otherwise point out the obvious; that the parenting proceedings were concluded by the making of consent orders and the relevant evidence, including that of Dr C, was not tested. Having emphasised that the evidence has not been tested, the submissions go on to assert that Mr Wallace has distorted and "malpresented" (sic) the facts; the two submissions do not sit comfortably together. Otherwise, it is submitted on behalf of Ms Wagner that it is not in the public interest nor in the interests of justice to "facilitate and enliven the vexatious actions of [Mr Wallace]".

34In their affidavit filed yesterday, Dr C made it clear that they do not admit any of the evidence of Mr Wallace in his filed affidavits. They took specific issue with particular matters raised; again, it is unnecessary, for present purposes, to go into further detail.

35In their submissions this morning, Dr C articulated their position in relation to the discharge of the injunctions as already described. They said further that the proposed orders for release of documents caused them concern, based in the fairness of any process that might subsequently be adopted. They explained that in their role as SEW they were reliant on the ICL for the provision of relevant documents, and had not seen many of the documents referred to by Mr Wallace. They accordingly did not consider themselves to be in a position at this stage to provide any meaningful input or be heard as to just what documents might or might not be required by the regulatory body, and was anxious to ensure procedural fairness in that regard. Not unfairly, they pointed out that the terms of the injunctions themselves provided that any application for the discharge should be supported by a "short affidavit", and that a very high volume of documents had been filed by Mr Wallace nevertheless. I did not require Dr C to make submissions in relation to the balance of the relief sought by Mr Wallace.

36Notwithstanding the volume of materials filed, and the approach taken in the submissions made, for the reasons that follow the matters actually requiring determination are limited and narrow in their scope.

The role of the professional bodies, and the role of the court

37The proper determination of the application is informed by an understanding of the roles of the professional bodies referred to in it, and the proper role of the court.

The role of AHPRA

38The professional conduct of psychologists is regulated by the Health Practitioner Regulation National Law(WA)Act 2010 ("the National Law"). Part 7 of the National Law deals with the registration of "health practitioners" including psychologists. In the various disciplines covered by the National Law, National Boards are established; the Psychology Board of Australia is the relevant National Board in this case.

39The functions of National Boards include registering suitably qualified and competent persons in the relevant health profession and, if necessary, imposing conditions on their registration, deciding the requirements for registration, and the development of registration standards. Relevantly for present purposes, they also include oversight for the receipt assessment and investigation of notifications regarding registered health practitioners, establishing panels to conduct hearings, and referring matters to responsible tribunals.[2]

[2] Health Practitioner Regulation National Law Act 2010 (WA) ("The National Law"), s 35.

40AHPRA is established by Part 4 of the National Law. Its primary function is to provide assistance and support to the various National Boards. A National Board may delegate any of its functions to a committee (including a state board) or to AHPRA.[3]

[3] Ibid, s 36.

41The National Law sets out the processes by which notifications as to a concern about the professional conduct of a health practitioner may be made to AHPRA or the relevant board. Such notifications may relevantly include the expression of a concern that the practitioner’s professional conduct is, or may be, of a lesser standard than that which might reasonably be expected by the public or their professional peers, or that the knowledge, skill or judgment possessed, or care exercised by the practitioner is, or may be, below the standard reasonably expected.[4]

The role of the Health and Disability Services Complaints Office

[4] Ibid, s 144.

42HaDSCO is established under the Health and Disability Services (Complaints) Act 1995 (WA). Section 25 prescribes the potential subject matter for complaints to HaDSCO in the following terms:

25. What complaints can be about

(1)A complaint must allege that one or more of the following has occurred —

(a)a provider has acted unreasonably by not providing a health service for the user;

(b)a provider has acted unreasonably in the manner of providing a health service for the user, whether the service was requested by the user or a third party;

(c)a provider has acted unreasonably in providing a health service for the user;

(d)a provider has acted unreasonably by denying or restricting the user’s access to records kept by the provider and relating to the user;

(e)a provider has acted unreasonably in disclosing or using the user’s health records or confidential information about the user;

(f)a manager has acted unreasonably in respect of a complaint made to an institution by a user about a provider’s action which is of a kind mentioned in paragraphs (a) to (e) by

(i)not properly investigating the complaint or causing it to be properly investigated; or

(ii)not taking, or causing to be taken, proper action on the complaint;

(g)a provider has —

(i)acted unreasonably by charging the user an excessive fee; or

(ii)otherwise acted unreasonably with respect to a fee;

(h)a provider that is an applicable organisation as defined in section 4 of the Carers Recognition Act 2004 has failed to comply with the Carers Charter as defined in that section.

(2)In subsection (1)(f) —

manager means a person who comes within paragraph (b) of the definition of provider in section 3(1) or the chief executive officer of the Health Department as mentioned in paragraph (c) of that definition.

[Section 25 amended: No. 37 of 2004 s. 33; No. 28 of 2006 s. 259; No. 33 of 2010 s. 14.]

43Complaints to HaDSCO may be made by or on behalf of a "user", defined to mean a person who uses or receives a health service, or is the subject of medical or epidemiological research. "Health service" is defined in the following terms:

health service means any service provided by way of —

(a)diagnosis or treatment of physical or mental disorder or suspected disorder; and

(b)health care, including —

(i)palliative health care; and

(ii)voluntary assisted dying as defined in the Voluntary Assisted Dying Act 2019 section 5;

and

(c)a preventive health care programme, including a screening or immunization programme; and

(d)medical or epidemiological research,

and includes any —

(e)ambulance service; and

(f)welfare service that is complementary to a health service; and

(g)service coming within paragraph (a), (b) or (c) that is provided by a person who advertises or holds himself or herself out as a person who provides any health care or treatment; and

(h)prescribed service,

but does not include an excluded service;

44The legislation further provides steps to be taken where complaints or elements of them are to be dealt with by the relevant National Board.[5]

[5] Health and Disability Services (Complaints) Act 1995 (WA), ss 31 and 32A.

45In my view, the complaints which Mr Wallace seeks to make (if they are to be made) are appropriately to AHPRA and not to HaDSCO. For reasons which will appear, nothing turns on that for present purposes.

The role of the Court

46The role of the court is to exercise Federal and Non-Federal jurisdiction conferred on it by legislation.[6] Considerations of accrued jurisdiction, or the power of the court to deal with matters transferred to it under the Jurisdiction of Courts (Cross-vesting) Act 1987 (WA) are not relevant for present purposes.

[6] Family Court Act 1997 (WA) ss 35 & 36.

47The fact that the injunctions Mr Wallace now seeks to discharge were made does not in any sense mean that it is a proper function of this court to entertain or determine complaints about the professional conduct of witnesses, even during the currency of the relevant primary proceedings. Evidence grounding such a complaint may be relevantly considered in the narrow context of applications for the discharge of the appointment of a SEW, or for that matter in the context of challenges to the evidence of a witness at trial; that is readily distinguished from hearing and determining the complaint itself.

48The purpose of the relevant injunctions, properly understood, reinforces that point.

The nature of the injunctions, and the source of power for them

49The power to grant injunctions in proceedings between unmarried parties in this court is found in Part 11 of the Family Court Act 1997 (WA) ("the Act").

50Section 235(1) permits the court to grant an injunction "as it considers proper for the welfare of the child" the subject of the relevant application. Section 235A permits the court to grant an injunction "as it considers proper with respect to the proceedings" in relation to a "matter arising out of a de facto relationship".

51Relevantly for present purposes, s 235(2) and (3) are in the following terms:

(2)In any proceedings under this Act (other than proceedings to which subsection (1) applies) the court hearing the proceedings may grant an injunction with respect to a matter to which the proceedings relate, by interlocutory order or otherwise, in any case in which it appears to the court to be just or convenient to do so.

(3)An injunction or order under this section may be granted unconditionally or on such terms and conditions as a court considers appropriate.

52The court has, in any event, implied power to regulate and ensure the integrity of the litigation process in all cases before it.[7] The clear initial purpose of the injunctions in this case was just that. Other than in exceptional cases, it is contrary to the interests of justice and of the relevant children for litigation of a parenting case to potentially be derailed or manipulated by the making of a complaint about a Single Expert Witness to a professional regulatory body. The ability of the parties, on proper grounds, to seek a variation or discharge of the injunction during the currency of the litigation ensures that the exceptional case can be addressed.

[7] See Re P’s Bill of Costs (1982) FLC 91-255; Taylor v Taylor (1979) FLC 90-674 per Gibbs J.

53It is unnecessary in the present case to consider any question that might be suggested to arise as to limitations on the power to extend the operation of the injunctions beyond the conclusion of the relevant proceedings, particularly in the absence of considered submissions directed to that point. On its face, s 235(2) clearly permits permanent injunctions. Nevertheless, when the initial purpose of the injunction is as described, that purpose must inform the exercise of discretion when an application is made for its discharge or variation.

The first element of the relief sought – discharge of the injunction

54The first question, then, is whether the injunctions should be discharged or varied to the extent necessary to permit Mr Wallace to make the complaint against Dr C that he foreshadows. Put another way, is it still proper, just, or convenient for the injunctions to remain in place?

55In my view, the starting point is reference to the initial purpose of the injunctions when granted. That purpose was as already outlined. The purpose has been achieved, as the parenting proceedings have been concluded by the making of final consent orders. There are no ongoing proceedings the integrity of which would require a continuation of the injunctions.

56In those circumstances, a consideration by this court of the merits or otherwise of Mr Wallace’s foreshadowed complaint is, with one exception, both unnecessary and inappropriate.

57Circumstances can readily be imagined where, on the face of an applicant’s case taken at its highest, a foreshadowed complaint was unarguably misconceived. In those circumstances, absent any determination as to limitations on power to extend the operation of the injunction past the conclusion of the primary proceedings, the applicant might conceivably fail to persuade the court to discharge the injunction, even though its initial purpose had already been completely served.

58This is not such a case. I would not want that observation to be misunderstood either by Mr Wallace or for that matter by Dr C; I have not reached any view, tentative or otherwise, that there is merit in the foreshadowed complaint. Rather, I cannot find that, even if everything Mr Wallace alleges is true, there simply could not be any merit in the complaint.

59The initial purpose of the injunction having been fully served, I see no proper basis for it to continue in force. The assessment of the merits or otherwise of Mr Wallace’s complaint is properly the responsibility of AHPRA. Bearing in mind the relevant legislation, were complaint to be directed to it, I expect HaDSCO would not consider that complaint to be properly brought; again, that is a matter appropriately dealt with by that body.

60To the extent it was submitted that the injunctions should be maintained as a matter of public policy, I reject those submissions.

61Public policy can only be formulated by courts within the confines of their proper role, and it "is only appropriate for the courts to recognise a category of public policy which is capable of precise statement, and which reflects so widely held an opinion, that the court’s reasoning can be described in terms of ‘recognition’ rather than ‘creation’".[8] That does not preclude (for example) a finding in a parenting case that particular records, including counselling records, should be kept confidential; while that might be couched in terms of public interest immunity, more typically the decision will be founded in the best interests of the individual child concerned.

[8] R v Young [1999] NSWCCA 166, 93.

62It is in the public interest for qualified and experienced professionals to remain willing and available to accept appointments as single expert witnesses in proceedings in this court. The public interest is also served by proper regulation of professions. No discernible separate public interest is served by this court imposing any obstacle to that proper regulation, other than in the context of maintaining the integrity of litigation and the courts processes as earlier discussed. For the reasons already touched on, it is not appropriate in my view for the court to seek to prioritise the former public interest over the latter.

63I propose to discharge the injunctions.

The second third and fourth elements of the relief sought - leave to provide documents

64The relief sought is unnecessary. If Mr Wallace makes a complaint to AHPRA, that body will follow its own investigative processes. Those processes include, where appropriate, the making of requests to this court for access to the court file and/or other documents. Such requests are routinely accommodated via the Principal Registrar.

65The orders sought by Mr Wallace would potentially pre-empt those processes, or at best confuse or inhibit them.

66I do not propose to make the orders sought by Mr Wallace in relation to the release or use of documents.

67That said, as Mr Wallace is self-represented, it is appropriate to set out briefly for his benefit the well-established principles of confidentiality which apply to proceedings in this court.

68Where a party to litigation receives documents or information because the person providing those documents or information is compelled to do so, whether by a relevant rule, a court order, or a subpoena the party must not use the documents or information "for any purpose other than that for which it was given unless it is received into evidence".[9] As already noted, the reports of Dr C and Dr E were not received into evidence at trial, as the parenting proceedings were resolved by consent.

[9] Hearne v Street (2008) 235 CLR 125, [96].

69The obligation just described is a substantive legal obligation to the court. A breach of the obligation, therefore, is contempt. Ignorance of the obligation is not a defence to contempt proceedings.[10]

[10] Watkins v AJ Wright (Electrical) Ltd [1996] 3 All ER 31.

70The long established common-law position just described is codified in Rule 203 of the Family Court Rules 2021 (Cth), which provides that a person who inspects or copies a document in relation to a case under the rules or an order must use the document for the purpose of the case only, and must not otherwise disclose the contents of the document, or give a copy of it, to any other person without the court’s permission.

71Additional obligations arise by the operation of s 243 of the Act, which makes it an offence to publish or otherwise disseminate to the public or to a section of the public by any means any account of any proceedings or part of them that identifies a party to the proceedings, a person who is related to or associated with a party to the proceedings, or a witness. The exceptions to those restrictions set out in s 243(8) expressly include the communication of pleadings, transcripts of evidence or other documents to a body responsible for disciplining members of the legal profession only; there is no express exception in relation to disciplinary bodies for other professions.

72Any communication which purports to "narrate, describe, retell or recite something that has happened in the proceedings, or something about the proceedings" may amount to an "account of the proceedings" for the purposes of s 243.[11] The dissemination of any account of proceedings identifying a person in the manner described above to any person who has "no legitimate interest, above and beyond any other sections of the public, in acquiring that information" (emphasis added)[12] may amount to an offence.

[11] Hinchcliffe v Commissioner of Police of the Australian Federal Police [2001] FCA 1747.

[12] Re W: Publication Application (1997) FLC 92-756.

73Those matters simply reinforce the conclusion that, if the complaint foreshadowed by Mr Wallace is to be made, the provision to AHPRA of any documents should not be pre-emptive, and should await a consideration by that body as to the information it needs to properly consider the complaint. Lest there be any confusion, it is likely that AHPRA is a body with a legitimate interest in information regarding the proceedings at least to the extent of receiving the initiating complaint, and materials necessary to consider it.

The next element of relief sought - permission to seek compensation

74To the extent this relief is sought because of a perception on the part of Mr Wallace that he might seek "compensation" through AHPRA or HaDSCO, that is addressed by the discharge of the injunctions and nothing further is required.

75To the extent the relief might be sought for some other purpose, it is unnecessary and beyond power in any event.

76I do not propose to make the order sought.

The final element of relief sought - a prohibition against further reference to or reliance upon Dr C’s reports

77Again, this element of the application is readily addressed. There are no current parenting proceedings between the parties. There is, accordingly, no requirement or even opportunity for further reference to or reliance upon Dr C’s reports. To the extent that Mr Wallace complains that reference has been made to the reports by the parenting coordinator, to his detriment, the relief sought serves no useful purpose - the documents have already been read by that person.

78In the event that in the future there are further parenting proceedings between the parties, any question of reliance or otherwise on Dr C’s reports will fall to be considered by the judicial officer hearing those proceedings in the normal course of determining what evidence may be adduced. There is no proper basis for a pre-emptive order in relation to proceedings not yet on foot.

79I do not propose to make the order sought.

Orders

1.The orders contained in paragraphs 10, 11 and 12 of the orders made on 13 October 2017 be and are hereby discharged.

2.The Form 2 application in a case filed on 19 May 2021 otherwise be and is hereby dismissed.

These reasons are the reasons for decision delivered on

5 November 2021, edited in places but only as to correct grammatical errors and some infelicity of expression without variation to the substance thereof.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Family Court of Western Australia.

KM

Associate

8 NOVEMBER 2021