Zarins & Mylne (No 2)

[2013] FamCA 299

FAMILY COURT OF AUSTRALIA

ZARINS & MYLNE (NO. 2) [2013] FamCA 299

FAMILY LAW – CHILDREN – Child to spend additional supervised time with mother
FAMILY LAW – DISCOVERY – Documents produced by subpoena – legal professional privilege – mother’s claim of legal professional privilege substantiated – passages subject to privilege redacted and documents otherwise released

Evidence Act 1995 (Cth) s 118
Family Law Act 1975 (Cth)

APPLICANT: Ms Zarins

RESPONDENT: Mr Mylne

INDEPENDENT CHILDREN’S LAWYER: Legal Services Commission of South Australia

FILE NUMBER: ADC 4802 of 2008

DATE DELIVERED: 6 May 2013

PLACE DELIVERED: Melbourne

PLACE HEARD: Melbourne

JUDGMENT OF: Macmillan J

HEARING DATE: 30 April 2013

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Belchamber

SOLICITOR FOR THE APPLICANT: Belchamber Legal

COUNSEL FOR THE RESPONDENT: Ms Dickson

SOLICITOR FOR THE RESPONDENT: Norman Waterhouse Lawyers

COUNSEL FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Mr Kent

SOLICITOR FOR THE INDEPENDENT

CHILDREN’S LAWYER:

Legal Services Commission Of South Australia

IT IS ORDERED THAT

1.   In addition to time spent with the mother at D Contact Centre pursuant to paragraph 2 of the orders of the Honourable Court made 21 December 2012 the child B born … April 2007 spend time with the mother from 10.00 am to 1.00 pm on Sunday 19 May 2013 and each alternate Sunday thereafter and that such time be supervised by an employee of E Supervision Organisation at the cost of the mother.

2.   That the mother be and is hereby restrained from permitting, allowing, encouraging, arranging or facilitating the maternal grandmother from:

a.   attending at or in the vicinity of the child’s school; and

b.   approaching the child at or in the vicinity of the child’s school.

3.   The Independent Children’s Lawyer provide the certified extract of paragraphs 26 to 28 inclusive of these reasons for judgment as provided by the Court and a sealed copy of these orders to the maternal grandmother, Ms F.

4.   That the documents produced by Dr G pursuant to the subpoena issued 14 December 2102 be placed in a sealed envelope on the court file marked with the words “Not to be opened except by order of a Judge”.

5.   That a photocopy of the documents produced by Dr G pursuant to the subpoena issued 14 December 2012, those parts of the documents highlighted in green having duly been redacted, be released to the parties for inspection and photocopying.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Zarins & Mylne (No. 2) 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 MELBOURNE

FILE NUMBER: ADC 4802 of 2008

Ms Zarins

Applicant

And

Mr Mylne

Respondent

REASONS FOR JUDGMENT

1. This matter was listed for a final hearing before me on 29 October 2012. The proceedings involved parenting issues in relation to the child of the relationship. After the luncheon adjournment on the first day of that final hearing, I was advised by counsel that the matter had settled in principle and I was asked to stand the matter over until the following day. The following day, I was advised by counsel for the mother that the mother had been admitted to hospital and was in the process of being psychiatrically assessed. I was further advised that following that assessment the mother was to be admitted to the hospital for a period of two to three days.

2. As a result of these events, the matter could not proceed and was referred to the Docketed Registrar for a directions hearing with a view to it being relisted for final hearing. I also made orders suspending paragraphs 3, 5 and 7 of the parenting orders made 14 May 2010 and ordered that until further order the child live with the father. I further gave liberty to the mother to apply on short notice to vary or set aside my orders, such application to be supported by an affidavit and medical evidence with respect to the mother's mental health and her capacity to care for the child.

3. On 11 December 2012 the mother filed an Application in a Case in which she sought orders that the matter be listed for an urgent hearing before me, that the orders of 30 October 2012 be discharged, and that the orders of 14 May 2010 be reinstated.

4. The matter was listed for hearing before me on 21 December 2012. On that date I made orders by consent as follows:

   2.That upon acceptance into the [D Contact Centre] the mother do spend time with the child [B] born …/4/07 (“the child”) on dates and times as nominated by the Director.

   3.That pending acceptance into the [D Contact Centre] the said child do spend time with the mother.

   a.   On 25/12/12 between 10:00 am and 1:00 pm.

   b.   Each Sunday between 10:00 am and 1:00 pm or such other times as nominated by [E Supervision Organisation]

   4.That the time referred to in paragraph 3 herein be supervised by an employee at [E Supervision Organisation] and with the cost of all such periods to be shared equally between the parties. Noting that the father will contact [E Supervision Organisation] forthwith.

   5.That the mother do attend upon such psychiatrist as nominated by the Independent Children’s Lawyer for the purposes of an independent psychiatric examination and with the cost of the same to be borne by the mother.

5. The mother's Application in a Case was otherwise adjourned for further hearing on a date to be fixed and allocated by the Docketed Registrar but to be no earlier than the last week in February 2013. My orders also required the mother to attend upon a psychiatrist nominated by the Independent Children's Lawyer for the purposes of an independent psychiatric examination and it was anticipated that that report would be available prior to the further hearing of the matter.

6. The matter was again listed for hearing before me on 25 February 2013 at which time I made orders and directions for the preparation and setting down of the matter for final hearing. The matter has now been listed for final hearing before me in Adelaide in late July 2013.

7. The father had issued a subpoena addressed to the mother’s psychologist, Dr G, for the production of the mother’s medical records. Dr G objected to the production of those records on the basis that she could provide a report to the court, that they were treatment notes and contained what she said were confidential matters, and that her notes contained matters that were not relevant to the proceedings. She also made reference to there being criminal proceedings which might somehow be prejudiced by the release of her notes to the father and his legal representatives. The matter was adjourned for further mention before me on 20 March 2013 to enable me to read the medical records produced by Dr G. 

8. It is for the party that issues a subpoena and seeks to uphold the issue of that subpoena to demonstrate the “apparent” relevance to the issues in dispute of the documents which are required to be produced pursuant to that subpoena. There are no pleadings in this court and the apparent relevance of the documents sought pursuant to the subpoena is established by reference to the affidavits filed in the proceedings. This matter was previously listed before me for final hearing and I have read the parties’ affidavits of evidence-in-chief and the affidavits in support of the interim proceedings and it is clear, as submitted by counsel for the father, that the question of the mother's mental health is a significant issue in these proceedings. Having now had the opportunity to read the medical records produced by Dr G, I am satisfied as to the apparent relevance of those records to the issues in dispute.

9. Dr G did not pursue her objection to the production of her notes when it became clear that the mother, subject to one matter to which I will refer, did not herself object to their production.  

10. During the hearing that day and having read the documents produced pursuant to the subpoena, I raised with the solicitor for the mother the possibility that her client might be entitled to claim that the records contained material that might be the subject of legal professional privilege. Accordingly, I made orders for the release of Dr G’s notes for inspection by the mother’s solicitor and adjourned the matter for further mention.  

11. Ms Belchamber, who appears on behalf of the mother, has now had the opportunity to inspect the medical records produced by Dr G and opposes the release of those parts of those records which are highlighted in green on the basis of their being the subject of legal professional privilege. It is difficult for both Ms Dickson, on behalf of the father, and Mr Kent, the Independent Children’s Lawyer, to take issue with that claim when they have not had the opportunity to inspect the documents, however they both agree that I should read those parts of the medical records that have been highlighted and rule on the mother’s claim of privilege.

12. It is the mother's case that the highlighted passages of the medical records relate to a conversation between the mother's previous solicitor and Dr G and that if evidence were to be adduced in relation to that conversation it would result in the disclosure of confidential communications between the mother and her then solicitor. Section 118 of the Evidence Act 1995 (Cth) provides that evidence is not to be adduced if the court finds that adducing that evidence would result in the disclosure of “a confidential communication” between the client and another person, or between a lawyer acting for the client and another person, that was made for the dominant purpose of the client being provided with professional legal services relating to proceedings before an Australian court to which that client is a party.

13. Having read the highlighted passages of the medical records produced by Dr G, I am satisfied that I should uphold the mother’s claim for legal professional privilege. I propose to have my Associate redact the highlighted passages of the medical records and otherwise order that those records be released for inspection and copying by the parties. 

14. I turn now to the other issues listed for mention before me. On 12 April 2013 the father filed an Application in a Case seeking that the matter be listed as a matter of urgency before me, that the orders made by consent for the child to spend time with the mother supervised by E Supervision Organisation be suspended, that the mother pay all costs of and associated with E Supervision Organisation as and from 17 March 2013, that the child not be subjected to any interviews by a social worker or child psychologist without an order of the court to do so, and that the maternal grandmother be restrained from attending at or in the vicinity of the child's school or approaching the child at or in the vicinity of the child’s school. By letter dated 29 April 2013 the father sought to amend his Application in a Case deleting paragraph 4 of that Application and amending paragraph 5 of that Application to read as follows:

    5.That the mother be restrained and an injunction be granted restraining her from:

    a.   Permitting, allowing, encouraging, arranging or facilitating the maternal grandmother from:

    i.Attending at or in the vicinity of the child’s school;

    ii.Approaching the child at or in the vicinity of the child’s school;

    b.   Making reports, allegations, or in any way contacting Families SA in relation to the father and/or the child without first obtaining the leave of this Honourable Court to do so.

    c.   Permitting, allowing, encouraging, arranging or facilitating any other person from making reports, allegations, or in any way contacting Families SA in relation to the father and/or the child without first obtaining the leave of this Honourable Court to do so.

    d.   Making reports, allegations, or in any way contacting South Australia Police in relation to the child without first obtaining the leave of this Honourable Court to do so.

    e.   Permitting, allowing, encouraging, arranging or facilitating any other person from making reports, allegations, or in any way contacting South Australia Police in relation to the child without first obtaining the leave of this Honourable Court to do so.

15. It is common ground that the mother is to attend an intake interview at D Contact Centre on 3 May 2013, the parties can attend the required orientation session this weekend, and the mother’s time with the child at the contact centre can commence on Saturday, 11 May 2013. It is also agreed that the mother’s time with the child at the contact centre is limited to two hours per fortnight. The mother seeks orders that in addition to her time with the child at the contact centre, she continue spending time with the child for three hours supervised by E Supervision Organisation on the alternate weekend. It is her case that she will meet the costs of E Supervision Organisation supervising her time with the child each fortnight.

16. It is the father’s case that:

    a)The orders for the mother to spend time with the child each week supervised by E Supervision Organisation were a stop-gap measure designed to allow the mother to spend time with the child pending acceptance by the D Contact Centre;

    b)The proposed continuation of the time supervised by E Supervision Organisation on a fortnightly basis is contrary to the intention of the interim orders the mother consented to;

    c)The mother failed to register at the contact centre in a timely manner, he says, in order to continue spending time with the child each week rather than each alternate week as is the case at the contact centre; and

    d)It is not a coincidence that since the mother commenced spending time with the child supervised by E Supervision Organisation there have been 11 notifications to Families SA, the father and the child have been subjected to separate interviews at Families SA, the child has been interviewed at school, and the father has been contacted by the CIB.

17. The mother denies that she failed to comply with her obligation to register with the contact centre. She also denies that she is in any way responsible for the many notifications to Families SA since she started spending time with the child. These are interim proceedings and the evidence is untested. On that basis, I cannot make any findings of fact where the evidence is in dispute. However, even if I were to ultimately find that the mother had not acted promptly to enrol at the contact centre that would not necessarily be determinative of the matter. Similarly, even if I were to find that the mother was in some way responsible for the notifications to Families SA, I would still need to weigh up any concerns I might have about those notifications against the benefits to the child of spending the additional time with the mother as she proposes.

18. When making my decision, it is the child’s best interests that are the paramount consideration. Determining the child’s best interests requires a consideration of the primary and additional considerations in ss 60CC(2) and 60CC(3) of the Family Law Act 1975 (Cth) (“the Act”) and how they apply to the facts of the particular case. The analysis of those statutory considerations must be consistent with the objectives and principles outlined in ss 60B(1) and 60B(2) of the Act.

19. The father and mother in this case have equal shared parental responsibility for the child. The issues in this case are of narrow ambit and although the Act requires a consideration of the provisions of s 65DAA of the Act, the mother is not, at least on an interim basis, seeking to spend either equal or substantial time with the child. The child was until eight weeks ago spending time with her mother and will do so again whichever proposal is adopted.

20. The child who is the subject of these proceedings is only six years of age. Until late October last year she lived with her mother. Overnight she went from living with her mother and spending time with her father to living with her father and not spending any time with her mother. Although the evidence of the E Supervision Organisation supervisors is untested, it is hard to imagine that changes to the arrangements for her care would not have been distressing for a child of this age or that she might not be missing her mother. I am particularly mindful of the fact that she has not seen her mother now for some eight weeks and that by the time she starts spending time with the mother at the contact centre it will be almost ten weeks.

21. It was submitted by the Independent Children’s Lawyer that I should accede to the mother’s Application. I have considered the risk to the child of further notifications, however weighing that up against the likely benefits to the child of spending additional time with the mother, I am satisfied that the mother’s proposal is in the child’s best interests. I do not agree that the mother’s proposal is contrary to the intention of the Orders made 21 December 2012. It is clear from those orders that a further hearing was envisaged, albeit after the completion of the mother’s psychiatric assessment.

22. The final issue I must determine is in relation to the injunctive orders sought by the father which he says are necessary to protect the child. There are two parts to this aspect of his application. The first relates to what he says are approximately eleven reports made to Families SA since the mother started spending time with the child supervised by E Supervision Organisation and what he says have been the consequences of those notifications. The wife denies any knowledge of or responsibility for those notifications. It is her case that she has contacted Families SA on two occasions since December 2012. The first was in February 2013 following the hearing on 25 February 2013 when she says she became aware that there was a current investigation and she rang Families SA to ask what was being investigated. She says that the second occasion was on 17 March 2013 when the father failed to make the child available to spend time with her. It is the mother’s case that the employees of E Supervision Organisation are mandated notifiers.

23. The mother admits that she has requested the South Australian Police to make welfare checks when the father has failed to make the child available for supervised time pursuant to the orders.

24. There is no evidence otherwise connecting the mother to the notifications made to Families SA. The fact that the notifications have stopped since the father stopped the mother’s time with the child does tend to suggest that it was the E Supervision Organisation employees who may have made the notifications however, it is not possible for me to find, on the basis of the evidence before me, that if an employee did make a notification to Families SA that the decision to make that notification was not bona fide or that the mother somehow exercised some control or facilitated the making of that notification.

25. Although as I have previously said I am concerned about the number of notifications that have been made and the consequences of those notifications for the child, in the absence of any evidence which would suggest that the mother has permitted, encouraged, allowed, arranged or facilitated the notifications made to Families SA by E Supervision Organisation or any other person or organisation, there is no basis for the injunctive relief sought by the father.  I am also not satisfied that the mother should be so restrained from contacting South Australia Police on the basis of her requests for welfare checks in circumstances where she was not seeing the child. If ultimately the court finds, once the evidence has been tested, that the mother is somehow responsible for these notifications, that will be a matter that the father will no doubt argue at trial reflects negatively upon the mother’s capacity as a parent.

1. Finally the father seeks an order restraining the mother in relation to the maternal grandmother’s attendance at the child’s school. It is the father’s case that the mother attended the school’s annual sports day and told the child it was a secret and that she should not tell anyone. He also asserts that the maternal grandmother attended a school assembly prior to Easter and gave the child some Easter eggs, and attended again on the child’s birthday with the child’s half-brother to give the child a present and handed out cupcakes to the children in her class. The father deposes that he received a call from the Principal of the school on 3 April 2013 advising him that the school could not facilitate the child spending time with the maternal grandmother at the school.  He further deposed that he received a further call from the Principal some days later advising him that the school had received legal advice that the maternal grandmother’s visits to the school should not continue. The Independent Children’s Lawyer’s enquiries confirmed the father’s evidence that the maternal grandmother’s visits to the school were disruptive for the child and the school and not supported by the school.

2. The mother admitted that the maternal grandmother had visited the child’s school prior to Easter and also on the child’s birthday. She opposed the orders sought by the father on the basis that those orders would also preclude the maternal grandmother’s attendance at events and activities at the school to which family members might be invited or expected to attend. I am satisfied that the grandmother’s attendances at the school are in all of the circumstances of this case not in the child’s best interests. A child’s school environment can be a haven for a child when there is a dispute between parents in relation to the arrangements for that child’s care. I am satisfied that in the circumstances of this case the attendance of the grandmother at the child’s school has the potential to undermine the child’s sense of security at school. In a perfect world, the child might benefit from her grandmother’s attendance at events and activities at the school to which family members are invited or might be expected to attend, but not in the context of these ongoing proceedings.

3. In all of the circumstances, I propose to accede to the father’s application that the mother be restrained from permitting, allowing, encouraging, arranging or facilitating the maternal grandmother’s attendances at the school. Although this order does not restrain the grandmother from attending at the school, the enquiries made of the school by the Independent Children’s Lawyer suggest that the school will on its own initiative, in the event that I make orders in the terms sought by the father, take steps to stop the grandmother visiting the child at the school. I would be surprised if the maternal grandmother would persist in visiting the child at the school if there was any possibility that to do so might impact negatively upon her daughter’s case that the child should be returned to her care and on that basis, I propose to make an order that the Independent Children’s Lawyer provide the maternal grandmother with a certified copy of the paragraphs 26 to 28 inclusive of my reasons for judgment and paragraph  2 of my orders.

I certify that the preceding twenty-eight (28) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Macmillan delivered on 6 May 2013.

Associate: 

Date:  6 May 2013