WINTERS & WINTERS
[2015] FamCA 195
•25 March 2015
FAMILY COURT OF AUSTRALIA
| WINTERS & WINTERS | [2015] FamCA 195 |
| FAMILY LAW – PRACTICE AND PROCEDURE – Where Application for declaration that leave is not required to, or alternatively that leave be granted to disclose material filed to the father’s treating psychologist – Where no party opposed the provision of documents to the psychologist – Where Court considered whether documents should be released from implied undertaking – Where Court considered there are special circumstances in this case – Where Court satisfied the father needs no leave to publish certain documents to the psychologist and should be released from the implied undertaking as regards to one document and as such the father is able to provide all the requested material to the psychologist. FAMILY LAW – PRACTICE AND PROCEDURE - Where Court considered elements of section 121 of the Family Law Act 1975 (Cth) – Where interim parenting orders previously made – Where although not required by the orders, the father sough therapeutic counselling from psychologist – Where psychologist identified material she wished to have access to in order to assist her the psychological treatment of the father – Where Court considered meaning of ‘disseminates’, ‘a section of the public’, ‘account of proceedings or any part of proceedings’ – Where Court noted exception in section 121(9)(f)(1) of the Family Law Act 1975 (Cth) engaged – Where Court satisfied the publication of the documents to the father’s treating psychologist would not comprise a breach of section 121 of the Family Law Act 1975 (Cth). |
| Family Law Act 1975 (Cth) s 121 |
| D v H [2008] QSC 35 Hearne v Street (2008) 235 CLR 125 Hermann v Hermann (No. 2) (2014) FamCA 587 Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308 In the Marriage of T (1984) FLC 79-742 Oates & Q v Anor (2010) FLC 93-451 Oscar v Traynor [2008] FamCAFC 158 Re Edelsten; Ex parte Donnelly (1988) 18 FCR 434 Re Springfield Nominees Pty Ltd [1992] FCA 472 Re W: Publication Application (1997) 137 FLR 205 Seaward v MacDuff (No. 4)[2012] FamCA 1147 |
| APPLICANT: | Mr Winters |
| RESPONDENT: | Ms Winters |
| INDEPENDENT CHILDREN’S LAWYER: | Jo Meade |
| FILE NUMBER: | TVC | 320 | of | 2013 |
| DATE DELIVERED: | 25 March 2015 |
| PLACE DELIVERED: | Townsville |
| PLACE HEARD: | Townsville |
| JUDGMENT OF: | Tree J |
| HEARING DATE: | 12 March 2015 |
REPRESENTATION
| SOLICITORS FOR THE APPLICANT: | Aboriginal & Torres Strait Islander Legal Service |
| SOLICITORS FOR THE RESPONDENT: | Queensland Indigenous Family Violence Legal Service |
| SOLICITORS FOR THE INDEPENDENT CHILDREN'S LAWYER: | Legal Aid Queensland |
Orders
That upon the father’s psychologist, Ms O, undertaking in writing in terms acceptable to the Independent Children's Lawyer to maintain the information contained therein confidential, that the father be at liberty to publish to Ms O the report from C Contact Centre regarding six months of supervised contact dated 29 January 2015.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Winters & Winters 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 |
FILE NUMBER: TVC 320/2013
| Mr Winters |
Applicant
And
| Ms Winters |
Respondent
REASONS FOR JUDGMENT
INTRODUCTION
By Application in a Case filed 5 March 2015 the father sought, amongst other things:
A declaration that leave is not required to, or alternatively that leave be granted to disclose the material filed with the Townsville Federal Circuit Court and Townsville Family Court as referred to in the undertaking signed by in relation to this matter to the father’s said treating psychologist, [Ms O], at [P Street, Suburb Q], Townsville, Queensland, 4810.
In Ms O’s affidavit filed 11 March 2015 she identified the documents she wished to be provided with as being:
(a)Family consultant memorandum dated 7 June 2013;
(b)Magellan report dated 25 June 2013;
(c)Family Report in this matter dated 2 September 2013;
(d)Affidavit of Dr L dated 7 November 2013, filed 25 November 2013;
(e)Updated Magellan report dated 27 November 2013;
(f)The interim judgment of Justice Tree made 3 April 2014; and
(g)The report from C Contact Centre regarding 6 months of supervised contact dated 29 January 2015.
During the course of the hearing of the application, the father also sought, to the extent that is was necessary, an order releasing him from the implied undertaking, to only use the documents for the purposes of these proceedings, which would otherwise attach to them.
Ultimately, no party opposed the provision of the documents to Ms O subject to her giving an appropriate undertaking. However the precise path by which the court could permit that to occur, and particularly the means by which, to the extent that it applied, the prohibition on publication of accounts of proceedings imposed by s 121 of the Family Law Act could be overcome, was a matter of some debate before me.
Ultimately I have determined that the father needs no leave to publish documents (a) to (f) to Ms O, and that he should be released from the implied undertaking as regards document (g). It follows that the father may provide all of the requested material to Ms O for the reasons which follow.
BACKGROUND FACTS
On 3 April 2014 for reasons which I delivered on that day, I made interim orders consequent upon the trial of the proceeding, with a view to them being reviewed, if necessary, after the expiration of a period of six months.
Those orders saw the mother given sole parental responsibility for major long term issues in relation to the parties’ two children, N (presently aged four) and K (presently aged 2). Both children were to live with the mother, and for the first six months from the date of order, spend supervised time with the father at the Townsville Children’s Contact Centre. Thereafter, the parties were obliged to try and agree upon further orders going forward, and in default of agreement, the trial of the matter would resume. Orders were also made requiring both parties to undertake various programs designed to improve their capacity to parent.
Up until the date of those orders, N had been residing with the father, and K with the mother. As explained in the reasons, the purpose of having N live with the mother rather than the father, was not only to reunite the siblings, but also to allow N’s relationship with his mother to be rehabilitated. It was also designed to effect an opportunity for the father to alter his behaviours, which had as a feature his regular interrogation of N when he returned from spending any time with the mother, based on the father’s preoccupation with a belief that the mother’s household represented a risk of sexual harm to N. However as I explained in my reasons, the parties have good prospects of ultimately being able to effect some form of shared parenting of both children, and hence the interim orders were in the best interests of both children.
Although not required to by the orders that I made, the father has sought therapeutic counselling from a psychologist, Ms O. In her affidavit filed 11 March 2015, she identified the material which she wished to have access to would enable her to better understand the issues relevant to the father’s parenting of the children and the current family law case. She specifically said that this material “will assist me in my psychological treatment of [the father].” Particularly she explained:
The purpose of counselling is to assist [Mr Winters] to identify and challenge his distorted cognitions related to the circumstances related to this children. Without a full understanding of the family dynamics and the issues before the court, there is limited scope to assist [Mr Winters] in challenging his cognitive distortions and assist him to more effectively engage in parenting and co-parenting.
The father is, of course, to be congratulated for having of his own volition sought the assistance of Ms O. It is in the interests of the children that that therapy has the best prospects of a successful outcome.
SECTION 121
Relevant statutory provisions
Section 121 of the Family Law Act relevantly provides as follows:
121(1) . A person who publishes in a newspaper or periodical publication, by radio broadcast or television or by other electronic means, or otherwise disseminates to the public or to a section of the public by any means, any account of any proceedings, or of any part of any proceedings, under this Act that identifies:
(a) a party to the proceedings;
(b)a person who is related to, or associated with, a party to the proceedings or is, or is alleged to be, in any other way concerned in the matter to which the proceedings relate; or
(c) a witness in the proceedings;
is guilty of an offence punishable, upon conviction by imprisonment for a period not exceeding one year.
…
121(9). The preceding provisions of this section do not apply to or in relation to:
(a) the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings; or
(b) the communication of any pleading, transcript of evidence or other document to:
(i) a body that is responsible for disciplining members of the legal profession in a State or Territory; or
(ii) persons concerned in disciplinary proceedings against a member of the legal profession of a State or Territory, being proceedings before a body that is responsible for disciplining members of the legal profession in that State or Territory; or
(c) the communication, to a body that grants assistance by way of legal aid, of any pleading, transcript of evidence or other document for the purpose of facilitating the making of a decision as to whether assistance by way of legal aid should be granted, continued or provided in a particular case; or
(d) the publishing of a notice or report in pursuance of the direction of a court; or
(da) the publication by the court of lists of proceedings under this Act, identified by reference to the names of the parties, that are to be dealt with by the court; or
(e) the publishing of any publication bona fide intended primarily for use by the members of any profession, being:
(i) a separate volume or part of a series of law reports; or
(ii) any other publication of a technical character; or
(f) the publication or other dissemination of an account of proceedings or of any part of proceedings:
(i) to a person who is a member of a profession, in connection with the practice by that person of that profession or in the course of any form of professional training in which that person is involved; or
(ia) to an individual who is a party to any proceedings under this Act, in connection with the conduct of those proceedings; or
(ii) to a person who is a student, in connection with the studies of that person; or
(g) publication of accounts of proceedings, where those accounts have been approved by the court.
I will discuss the relevant authorities pertaining to each element of s 121(1) and their application to the facts of this case individually.
“Disseminates .. by any means”
In Re W: Publication Application (1997) 137 FLR 205 at 227-8 the Full Court held, following the earlier decision of Morling J in Re Edelsten; Ex parte Donnelly (1988) 18 FCR 434, that the phrase “otherwise disseminate to the public or to a section of the public by any means” should not be read ejusdem generis with the previous parts of the section so as to restrict its otherwise broad meaning. It therefore follows that the provision to Ms O of the relevant documents would be a dissemination of them by any means.
“A section of the public”
The following points may be distilled from the relevant authorities that deal with this phrase:
·The State Child Welfare Authorities are not “a section of the public” for the purposes of s 121, at least insofar as an Independent Children's Lawyer may wish to forward to an authority portions of a judgment involving matters potentially within the authority’s jurisdiction. That is because “they may have a significant and legitimate interest which is not shared by other sections of the public”: see Re W: Publication Application (supra) at 229.
·The principle enunciated in Re W: Publication Application is not restricted to child welfare authorities, but would extend to the provision of orders to a Contact Centre, and “it is quite arguably the case that the Independent Children's Lawyer could have made the documentation available to the Centre without leave of the court.” Oscar & Traynor [2008] FamCAFC 158 at [62];
·The provision of reasons for decision and other material from the trial to the Commonwealth Attorney-General, in circumstances where there was a finding that both parties had consistently avoided tax by deliberately understating their income, was not publication to the public or to a section of the public : In the Marriage of T (1984) FLC 79-742;
·The provision of documents relating to the proceedings to the relevant investigative body for legal practitioners involved in the proceedings is not prohibited by s 121(1): see Oates & Q & Anor (2010) FLC 93-451 at [108].
·Conversations between a party to Family Court proceedings and a close personal friend in relation to the proceedings is not a dissemination to the public: see Re Edelsten; Ex parte Donnelly (supra) at 436. That is because “the communication [is] essentially personal, that is, as being made … in a private way”: see Hinchcliffe v Commissioner of Australian Federal Police (2001) 118 FCR 308 at 324-5 per Kenny J.
Applying those authorities to these facts, it is plain that the dissemination of the material to a therapeutic psychologist is purely personal in nature, and does not comprise dissemination to a section of the public as that phrase is used in s 121.
“Account of proceedings or any part of proceedings”
In Hinchcliffe v Commissioner of Australian Federal Police (supra) at 323-4 Kenny J said as follows:
First, before s 121(1) can be contravened, there must be a dissemination of an account of proceedings, or part of them, under the Act. I accept, as the respondents submitted, that an “account”, for this purpose, is a narrative, description, retelling, or recital of such proceedings. Paragraph 10 of the letter of complaint does not allege that anyone has given an account in this sense. Rather, the most the complaint alleges is that “fabrication and lies” contained in documents interview eh John Hinchcliffe proceedings were communicated by Ms Walker, her solicitor, and Mr Foale to associates of the Hinchcliffes. There is no account of proceedings merely because some allegations made in the proceedings are reiterated outside the Court. Before there can be an account of proceedings in the relevant sense, a communication must purport to narrate, describe, retell or recite something that has happened in the proceedings, or something about the proceedings. Even I Ms Walker and Mr Foale were repeating untruths about the Hinchcliffes, where were untruths asserted in the John Hinchcliffe proceedings, this would not amount to an account of these proceedings.
This passage was expressly adopted with by de Jersey CJ in D v H [2008] QSC 35 at [16].
In Seaward & MacDuff (No.4) [2012] FamCA 1147 at [22], Ryan J appeared to accept that a transcript of proceedings would comprise an account of them, as her Honour held that a relevant exception in s 121(9)(b) was engaged, which would not have been necessary for her Honour to consider if the matter was not in account of any proceedings in the first place.
However the exceptions in s 121(9) include the following documents:
·Pleadings;
·Transcripts of evidence;
·“Other documents” for use in connection with the proceedings;
·A notice or report directed to be published by the court;
·The court list of proceedings identifying the names of parties that are to be dealt with by the court.
It is difficult to see that a pleading of itself and without more would be “any account of any part of any proceedings,” as discussed by Kenny J in Hinchcliffe. However plainly s 121(9), which specifically excepts a pleading, works on the assumption that such a document would otherwise have been caught within s 121(1).
Ultimately given the conclusion I have come to in relation to the meaning of “a section of the public” and particularly that it does not apply to the dissemination to Ms O here, and because as shall be seen shortly, in any event the exception in s 121(a)(g)(i) would apply. I do not need to determine whether or not the provision of any part of the material which the father wishes to provide to his therapist would be within the meaning of “account of proceedings or any part of proceedings.”
Does s 121(9)(f)(i) apply?
This exception extends to publication or dissemination of material otherwise captured by s 121(1) to a professional in connection with the practice of their profession. Ms O is a professional qualified psychologist. She is treating the father therapeutically. She wants to have that information to maximise the chances of the father’s therapy being successful. In my view assuming that publication of the material to her was captured by s 121(1), then the exception in subsection (9)(f)(1) would be engaged and hence that publication would not be unlawful.
Conclusion
I am satisfied that the publication of the documents to Ms O would not comprise a breach of s 121. I should also say that in my tentative view, there is no opportunity for a court to grant leave to publish the sort of material being discussed here under s 121(9)(g), but it is unnecessary to express any conclusion on that point in this case.
IMPLIED UNDERTAKING
Relevant principles
In Hearne v Street (2008) 235 CLR 125 at 154-5 in the joint judgment of Hayne, Heydon and Crennan JJ their Honours said as follows:
96. Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. They types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena, documents produced for the purposes of taxation of costs, documents produced Pursuant to s 65DA(2) and s 62B, the particulars of the obligations these Orders create and the particulars of the consequences that may follow if a person contravenes these Orders and details of who can assist parties adjust to and comply with an Order a direction from an arbitrator, documents seized pursuant to an Anton Piller order, witness statements served pursuant to judicial direction and affidavits. The appellants did not dispute the existence of this principle, and in particular did not dispute its potential application to the affidavit of Mrs Hesse and the witness statement of Dr Tonin.
97. It is common to speak of the relevant obligation as flowing from an “implied undertaking.”
[footnotes omitted]
Recently in Hermann & Hermann (No2) [2014] FamCA 587 at [15]-[17] McMillan J summarised the relevant principles dealing with release from the implied obligation as follows:
[15] A party may be released from that implied obligation if there are special circumstances for doing so. Wilcox J in Re Springfield Nominees Pty Ltd [1992] FCA 472 (“Springfield Nominees”) said at [26] that “[f]or “special circumstances” to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present.”
[16] Whilst it is necessary that there be special circumstances, as the Full Court of the Federal Court said in Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC at [31]:
…The notion of “special circumstances” does not require that some extraordinary factors must bear on the question before the discretion will be exercised. It is sufficient to say that, in all the circumstances, good reason must be shown why, contrary to the usual position, documents produced or information obtained in one piece of litigation should be used for the advantage of a party in another piece of litigation or for other non-litigious purposes. The discretion is a broad one and all the circumstances of the case must be examined.
[17] Although Wilcox J in Springfield Nominees indicated that is was neither possible nor desirable to prescribe an exhaustive list of factors that might lead the court to conclude that a party should be released from their implied obligations, his Honour did find that those factors would include the following matters:
…the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the documents came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding.
[18] It is necessary to consider all of the circumstances in each case in order to determine whether there are special circumstances for releasing a party from the implied obligation.
Documents (a) to (f)
All of these documents were part of the evidence before me in the trial of these proceedings and therefore have been made public. To the extent that there is any prohibition upon publication of material that has been tendered into evidence, if it exists it must therefore be found in s 121.
Therefore the implied undertaking no longer attaches to those documents. There is no need for an order releasing the father from that implied undertaking in respect of them.
Document (g)
This document is the subsequently prepared report from the Contact Centre about the father’s supervised time with the children pursuant to the interim regime. That has not been admitted into evidence before me, at least at this point in time. The report was produced pursuant to my orders, and therefore attracts the implied undertaking.
The question then becomes whether, in all the circumstances, good reason has been shown by the father as to why that material should be allowed to be published by him to Ms O.
By reference to the factors identified by Wilcox J in Springfield Nominees (supra) I note as follows:
·The document in question is a report of the father’s behaviour under supervision pursuant to orders. It may have some information relevant to his therapy;
·The document came into existence as part of the process of the court informing itself as to the father’s conduct when spending time with the children under the orders;
·I do not know the attitude of the author of the Contact Centre report to it being released to a therapist, but I cannot identify any reason why they would be disinclined to permit it, given that it can only assist both the father, and ultimately the children. There is no suggestion that the Contact Centre would be prejudiced by the release of the document;
·The document was created for the purposes of this litigation and therefore expected to enter the public domain in due course;
·The information in the document is not commercially sensitive, but is somewhat personal in nature pertaining to the father and the children. Insofar as it is personal to the father, there is no reason why he should not be able to publish it. Insofar as it is personal to the children, given that it is to ultimately assist them by challenging the father’s otherwise somewhat entrenched view as to the mother posing a risk to the children, there is no need to protect the children’s privacy. In any event, not only are all parties agreed that Ms O should undertake to keep the documents confidential, but no doubt Ms O is subject to professional obligations of confidentiality in any event;
·The document came into the hands of the father by virtue of it being provided to the parties by the Independent Children's Lawyer;
·The production of the document to Ms O is likely to assist the father to obtain the maximum benefit from his therapy, and hence improve not only his capacity to properly parent the children, but ultimately the outcome for them. In that sense allowing Ms O access to it will be in the interests of substantive, as distinct from procedural, justice.
Conclusion
For those reasons I am satisfied that special circumstances have been established and there will be an order releasing the father from the implied undertaking as to confidentiality which would otherwise attach to the contents of the Contact Centre report.
I certify that the preceding thirty one (31) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 25 March 2015.
Associate:
Date: 25 March 2015
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