WINTERS & WINTERS - [2015] FamCA 195

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

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: WINTERS & WINTERS [2015] FamCA 195
Case: [2015] FamCA 195
Decision Date: 25 March 2015

CaseChat Overview and Summary

In the matter of *Winters & Winters*, the father sought leave to disclose certain documents to his treating psychologist. The dispute centred on whether such disclosure would breach the implied undertaking of confidentiality that attaches to court documents, and whether it would contravene section 121 of the *Family Law Act 1975* (Cth), which prohibits the dissemination of information about family law proceedings. The father's psychologist had requested access to specific documents to assist in the therapeutic treatment of the father.

The court was required to determine two primary legal issues. Firstly, whether the father required leave to disclose the documents to his psychologist, or alternatively, whether leave should be granted. This involved considering the nature of the implied undertaking and whether its release was warranted. Secondly, the court had to assess whether the proposed disclosure would constitute a breach of section 121 of the *Family Law Act 1975* (Cth), particularly in light of the exceptions provided within that section.

Justice Tree found that the father did not require leave to publish certain documents to his psychologist, Ms O. The court reasoned that the psychologist's request was for therapeutic purposes, and that the disclosure would not amount to a dissemination to "a section of the public" in a manner that would contravene section 121. Furthermore, the court identified that an exception under section 121(9)(f)(1) of the Act was engaged, which permits disclosure for the purposes of legal or other professional advice. The court was satisfied that the publication of the documents to the treating psychologist would not breach section 121.

The court ordered that upon Ms O undertaking in writing, in terms acceptable to the Independent Children's Lawyer, to maintain the information contained therein confidential, the father would be at liberty to publish to Ms O the report from C Contact Centre regarding six months of supervised contact dated 29 January 2015.

Orders

Orders of the court

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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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