Wenlack and Cimorelli

[2013] FamCA 602

FAMILY COURT OF AUSTRALIA

WENLACK & CIMORELLI [2013] FamCA 602

FAMILY LAW – PRACTICE & PROCEDURE – where the wife sought access to material produced to the court by the parties’ marriage counsellor – where the husband raised objection to the inspection of the material produced – where the onus was on the husband to establish that the parties’ marriage counsellor is a family counsellor within the meaning of the Act – where the husband was unable on the evidence to do so – where there is no basis to find that the parties’ marriage counsellor is a family counsellor within the definition of the Act and consequently the prohibition of disclosure contained within s 10D does not apply – where the husband also sought to raise public interest immunity – where it was determined that an immunity against production of the documents for inspection does not apply in this case –  Fritze & Fritze & New England Area Health [2006] FamCA 232 applied.

Family Law Act 1975 (Cth) ss 10B, 10C(1), 10D(1)
Evidence Act 1995 (NSW) s126B
Evidence Act 1995 (Cth) s 135

Unitingcare-Unifam Counselling & Mediation & Harkiss and Anor 2011 FamCAFC 159
Jermyn & Carling [2012] FMCAfam 814
Relationships Australia & Pasternak & Pasternak & Children's Representative (1996) FLC 92-699
Feinster & Feinster and Anor [2006] FamCA 232

APPLICANT: Mr Wenlack

RESPONDENT: Ms Cimorelli

FILE NUMBER: SYC 2881 of 2013

DATE DELIVERED: 13 August 2013

PLACE DELIVERED: Sydney

PLACE HEARD: Sydney

JUDGMENT OF: Justice Aldridge

HEARING DATE: 13 August 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Devere

SOLICITOR FOR THE APPLICANT: Barkus Doolan Kelly

COUNSEL FOR THE RESPONDENT: Ms Clifford

SOLICITOR FOR THE RESPONDENT: Watts McCray Lawyers

Orders

1. That leave is granted to the legal representatives of the parties to inspect subpoena material produced by Ms B, Clinical Psychologist. 

2. That leave is granted to the legal representatives of the parties to inspect subpoena material produced by C Childcare Services.

3. That I stand this matter over, before myself for an interim hearing, at 10 am on Friday 16 August 2013.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Wenlack & Cimorelli has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT SYDNEY

FILE NUMBER: SYC 2881 of 2013

Mr Wenlack

Applicant

And

Ms Cimorelli

Respondent

REASONS FOR JUDGMENT

Introduction

1. These reasons were delivered orally.

2. The wife has served a subpoena upon Ms B who provided marriage counselling services to the parties.  The wife seeks access to the material produced to the court by Ms B and that access is opposed by the husband.

3. Save for the reference to family counsellor contained in s 10B of the Family Law Act1975 (Cth) (“the Act”) counsel for the wife accepts that the services provided by Ms B involved a process of her dealing with personal and inter-personal issues in relation to a marriage.

4. Section 10B describes family counselling as a process in which a family counsellor carries out those activities a family counsellor as defined in s 10C(1) of the Act.

5. The evidence does not establish that Ms B falls within any of the categories contained within s 10C(1). It is the husband who asserts that Ms B is a family counsellor within the meaning of the Act and thus must not disclose the communications made to her in accordance with s 10D(1) of the Act.

6. The onus is accordingly upon the husband to establish that Ms B is a family counsellor within the definition of s 10C. That has not been done. There is no basis to find that Ms B is a family counsellor within the definition of the Act and the prohibition of disclosure contained within s 10D does not apply.

7. I was referred to the decision of Unitingcare-Unifam Counselling & Mediation & Harkiss and Anor 2011 FamCAFC 159 but that issue is not of direct assistance because there was no doubt in that case that Unifam was a family counsellor within the meaning of the Act. It was also submitted by the husband that a public interest immunity attracts the discretion under s 126B of the Evidence Act 1995 (NSW) against disclosure of the documents and relied in support upon the decision of FM Harman in Jermyn & Carling [2012] FMCAfam 814. Section 126B has been repealed from the Commonwealth Act. Counsel for the husband also relied upon the decision of Relationships Australia & Pasternak & Pasternak & Children's Representative (1996) FLC 92-699 that case was determined before sections 10B to 10D were inserted to the Family Law Act and in my opinion have been overtaken by those amendments.

8. In Feinster & Feinster and Anor [2006] FamCA 232 Justice Watts found that the ordinary psychiatrist patient relationship does not attract a public interest immunity.

Conclusion

1. Taking that into account it seems to me that there is not an immunity against production of the documents for inspection.  Section 126B of the New South Wales Act, to the extent it applies, and s 135 of the Evidence Act1995 (Cth) might be relied upon in due course to base a claim for opposing the tender of those documents but because they are not a necessary barrier to the admission, they are, of themselves, not a barrier to inspection.

2. Accordingly, I make an order for inspection as set out at the commencement of my reasons.

I certify that the preceding ten (10) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Aldridge delivered on 13 August 2013.

Associate:

Date:  15 August 2013