Zawada and Welchman-Rubie and Anor
[2012] FamCA 1059
•14 December 2012
FAMILY COURT OF AUSTRALIA
| ZAWADA & WELCHMAN-RUBIE AND ANOR | [2012] FamCA 1059 |
FAMILY LAW – PRACTICE AND PROCEDURE – subpoena – where the father issued a subpoena directed to B Pty Ltd for the production of documents – where an objection has been lodged on the grounds that the documents sought fell within the meaning of “family counselling” or “family dispute resolution” under the Family Law Act 1975 (Cth) – where the Court was not satisfied that the material sought fell within the scope of either definition.
FAMILY LAW – PRACTICE AND PROCEDURE – subpoena – where the alternative objection was upon the grounds of public interest immunity – balancing of the benefit and relevance of the information sought with the question of public interest immunity – where the Court was not satisfied that public interest immunity had been established – where the Court was of the view that the documents sought were of limited relevance in any event – orders that the subpoena be dismissed.
| Evidence Act 1995 (Cth) s 135 |
Goldy & Goldy (No 2) [2011] FamCA 418
Northern Territory of Australia v GPAO (1999) FLC 92-838
B Pty Ltd v Pasternak and Pasternak and Children’s Representative (1996) FLC 92-699
| APPLICANT: | Mr Zawada |
| RESPONDENT: | Ms Welchman-Rubie |
| INTERVENOR: | B Pty Ltd |
| INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
| FILE NUMBER: | ADC | 3674 | of | 2010 |
| DATE DELIVERED: | 14 December 2012 |
| PLACE DELIVERED: | Adelaide |
| PLACE HEARD: | Adelaide |
| JUDGMENT OF: | Dawe J |
| HEARING DATE: | 8 August 2012 |
REPRESENTATION
| COUNSEL FOR THE APPLICANT: | Ms Lewis |
| SOLICITOR FOR THE APPLICANT: | Georgina Parker Lawyers |
| COUNSEL FOR THE RESPONDENT: | Ms Dickson |
| SOLICITOR FOR THE RESPONDENT: | R G Eckermann and Co |
| COUNSEL FOR THE INTERVENOR: | Mr Jackson |
| SOLICITOR FOR THE INTERVENOR: | Camatta Lempens |
| COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: | Mr Winter |
| SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: | Legal Services Commission of South Australia |
Orders
The subpoena to B Pty Ltd is dismissed.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Zawada & Welchman-Rubie & Anor (Subpoena) 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 ADELAIDE |
FILE NUMBER: ADC 3674 of 2010
| Mr Zawada |
Applicant
And
| Mr Welchman-Rubie |
Respondent
REASONS FOR JUDGMENT
Introduction
By Notice of Objection B Pty Ltd objected to the inspection or copying of any of the documents sought to be produced by subpoena issued on behalf of the father Mr Zawada. The objection to the subpoena was listed before His Honour Justice Burr (as he then was) and Registrars of this Court. It came on for determination before me on 8 August 2012.
On that date counsel for the father, mother, Independent Children’s Lawyer and B Pty Ltd indicated that it was possible for the matter to be resolved if both the mother and father requested their private information from the Suburb C Children’s Contact Service (B Pty Ltd) and then agreed to release their private information to each of the other parties in the Family Court proceedings.
The reserved decision was therefore not delivered while the Court awaited information from the parties as to whether such a decision was still necessary.
On 29 November 2012 the Court was informed that the matter had not been resolved and the decision was required.
At the hearing before the Court on 8 August 2012 the father was represented by Ms Lewis, the mother by Ms Dickson, the Independent Children’s Lawyer by Mr Winter and B Pty Ltd (for the Suburb C Children’s Contact Service) by Mr Jackson.
Summary of relevant background
The applicant father issued proceedings in September 2010. The mother filed her response in October 2010. The proceedings concern parenting orders for the child of the parties, D who was born in April 2005. After various interim orders were made the proceedings were transferred from the Federal Magistrates Court in March 2011. There have been further interim proceedings. The matter was designated a Magellan matter.
As at July 2012, both the mother and father were seeking sole parental responsibility for the child. Each sought orders that the child live with the parent and have restricted time with the other parent. The mother sought that the father’s time with the child be supervised and other specific orders and directions.
The father sought that the mother spend time with the child “on such days and upon such conditions as ordered by this court”. (Father’s Outline of Case filed on 30 July 2012).
The mother’s case included allegations of physical and sexual abuse by the father on the child and the impact upon her if unsupervised time for the father with the child was reinstated.
The father’s case is that he denied any abuse of the child. The father raised allegations that the mother had inappropriately influenced the child and was not supporting the father’s time with the child.
On 12 December 2011, His Honour Justice Burr (as he then was) heard interim proceedings at which the mother, father, Independent Children’s Lawyer and the Minister for the Department of Education and Child Development (Families SA) were represented. Orders were made that the father spend time with the child “at and under the supervision of the [Suburb C] Children’s Contact Service (CCS) for a period of two hours each alternate Sunday on such dates and between such hours as are afforded to the father by the [Suburb] C CCS.” (Further consideration of the proceedings were adjourned to 2.15 pm on 13 March 2012).
On 31 January 2012 the solicitors for the father issued a subpoena to B Pty Ltd, Suburb C Children’s Contact Service, Ms E, Acting Coordinator, seeking production of documents, being:
all documents, file notes, records of interview and other information in relation to the child the child [D] born on the .. of April 2005 and his parents [Mr Zawada] and [Ms Welchman-Rubie].
On 20 February 2012 a Notice of Objection-subpoena was filed in the Court on behalf of B Pty Ltd. The objection to the production and inspection/copying of the documents was based on the following reasons:
1.Service of the subpoena did not comply with the requirements of Rule 15.28(1)(a) of the Family Law Rules 2004.
2.The documents are protected from disclosure
2.1As being confidential and inadmissible documents relating to family counselling within the meaning of sections 10D and 10E of the Family Law Act 1975 and family dispute resolution within the meaning of sections 10H and 10J of the Family Law Act 1975; and,
2.2Further and in the alternative, the documents are protected from production on the grounds of public interest immunity.
The subpoena was made returnable for 22 February 2012. When the matter came on before His Honour Justice Burr (as he then was) on 13 March 2012 an order was made at paragraph 2:
2.The time for compliance for [B Pty Ltd] with the subpoena filed by the father on 31 January 2012 and directed to the [Suburb C] Children’s Contact Service be extended to on or before 4 pm on Tuesday 27 March 2012.
3.In the event that the objection by [B Pty Ltd] in relation to the aforesaid subpoena directed to the [Suburb C] Children’s Contact Service is sustained, then the subpoena hearing be listed at first instance before Registrar Paxton on the adjourned date at 2.30 pm on Tuesday 12 June 2012.
An order was made on that date in which the father’s time with the child was to take place on certain dates in April 2012 and each Sunday weekly thereafter on condition that the time be supervised by one of Ms F or Ms G. Certain other conditions and ancillary orders were made.
The question of the objection to the subpoena was thereafter listed before me on 8 August 2012.
In August 2012 the Court attempted to list the matter for final hearing, but on the indication that the counsel estimated the hearing time would require 15 days, the matter was referred to the list of matters awaiting allocation of a trial date, where it remains.
In the affidavit filed by the father on 7 March 2012 the father refers to the agreement which he believed existed between himself, the mother, the Crown acting for the Minister of Families SA and the Youth Court, that the Youth Court proceedings would be withdrawn “on the basis that I would spend time with the child at the [Suburb C] Contact Centre”. He then sets out the appointments and contact he had with various people. At paragraph 13 he says:
On the 20th of December 2011 I again spoke to [Ms E]. [Ms E] advised me that as a result of my “refusal” to provide to the Contact Service copies of the CPS Report in relation to the child that the Service would not facilitate supervised contact taking place.
Paragraph 18 of that affidavit refers to the annexures which are correspondence between the Contact Centre and the Independent Children’s Lawyer in January 2012. The annexure includes the letter of 18 January 2012 from B Pty Ltd Suburb C Children’s Contact Service to the Independent Children’s Lawyer. That letter refers to the father’s refusal to permit the Children’s Contact Service to have access to the Child Protection Service (CPS) report. The letter also refers to the concerns raised about the intake process and conversations. The letter concluded by saying that the Contact Service was not able to progress the application to the next stage as they required either copies of “the before mentioned CPS reports or at a minimum written advice from the CPS as to the status of the investigation, … and any resulting findings and if any recommendations were made.” The letter concluded:
Finally, in response to Ms Parker’s request to you on behalf of her client that you obtain from us copies of any correspondence provided to us by either the mother’s solicitor or directly by the mother we advise that we are not able to comply with this request as to do so would place us in breach of confidentiality and suggest that such request be made directly to the mother or her solicitor.
In her affidavit filed on 9 March 2012, the mother acknowledged the orders providing for the child to spend time with the father at the Children’s Contact Service. She says in paragraphs 12 to 16:
12.With reference to paragraph 7 of the father’s Affidavit I say that I did not anticipate that the Children’s Contact Centre would refuse the father access to the service. With reference to the father’s statement “I did not anticipate that the Crown or the mother would oppose my entry to that service” I say that I did not at any time interfere with the entry process. I was in fact relying upon this service to assist us with moving forward with care arrangements.”
13.With reference to paragraphs 9 – 15 of the father’s Affidavit I say that I do not know and cannot admit the content of same.
14.I say that I attended one entry interview at the said service with [Ms H] on 18 November 2011. I was advised that the time would be taking place on Sundays at 2.00 pm and I cleared my diary in preparation for same. I heard nothing further from the service.
15.With reference to paragraphs 16 and 17 of the father’s Affidavit, I deny the assertion that I ever advised Ms I that contact at the service would not be taking place because it was considered to be “too dangerous”. Annexed hereto and marked ‘SLR1’ is a copy of the letter forwarded to my solicitor by the father’s solicitor dated 11 January 2012 that accuses me of attempting to dissuade the said service from facilitating the ordered contact time.
16.Annexed hereto and marked ‘SLR2’ is a copy of the response forwarded by my solicitor on 20 January 2012. The letter clearly refutes the allegation made against me and sets out in detail my conversation with [Ms H].
At the hearing before me on 8 August 2012 counsel for B Pty Ltd produced Exhibit 1, which is a copy of the standard B Pty Ltd Confidentiality Agreement Children’s Contact Service. The first two paragraphs of that standard agreement are as follows:
Confidentiality
B Pty Ltd (SA) complies with our legal obligations to privacy and has policies regarding our commitment to and any limitations of our confidentiality as an organisation. Our practitioners are committed to providing you with a confidential service. All information provided by you is stored in locked files. All practitioners sign an oath of confidentiality.
Limits to Confidentiality
It is important to understand that observational notes taken before, during and immediately after changeover or supervised contact are not privileged. This means that they can be used in legal proceedings and workers may also be subpoenaed to give evidence in court about what they observed or spoke to adults and children about.
The form continues to set out the obligations upon staff who have concern about serious abuse or neglect and other related matters.
The Law
Sections 10B and 10F of the Family Law Act 1975 (Cth) (‘the Act’) state:
Section 10B
Definition of family counselling
Family counselling is a process in which a family counsellor helps:
(a)one or more persons to deal with personal and interpersonal issues in relation to marriage; or
(b)one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:
(i)personal and interpersonal issues;
(ii)issues relating to the care of children.
Section 10F
Definition of family dispute resolution
Family dispute resolution is a process (other than a judicial process):
(a)in which a family dispute resolution practitioner helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other; and
(b)in which the practitioner is independent of all of the parties involved in the process.
The objection filed on behalf of B Pty Ltd referred to the documents relating to “family counselling within the meaning of sections 10D and 10E of the Family Law Act 1975 and family dispute resolution within the meaning of 10H and 10J of the Family Law Act 1975”. Those sections are as follows:
Section 10D
Confidentiality of communications in family counselling
(1)A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.
(2)A family counsellor must disclose a communication if the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3)A family counsellor may disclose a communication if consent to the disclosure is given by:
(a)if the person who made the communication is 18 or over--that person; or
(b)if the person who made the communication is a child under 18:
(i)each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii)a court.
(4)A family counsellor may disclose a communication if the counsellor reasonably believes that the disclosure is necessary for the purpose of:
(a)protecting a child from the risk of harm (whether physical or psychological); or
(b)preventing or lessening a serious and imminent threat to the life or health of a person; or
(c)reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d)preventing or lessening a serious and imminent threat to the property of a person; or
(e)reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f)if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5)A family counsellor may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 ) for research relevant to families.
(6)Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the counsellor's evidence is inadmissible in court, even if subsection (2), (3), (4) or (5) allows the counsellor to disclose it in other circumstances.
(7)Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(8)In this section:
"communication" includes admission.
Section 10E
Admissibility of communications in family counselling and in referrals from family counselling
(1)Evidence of anything said, or any admission made, by or in the company of:
(a)a family counsellor conducting family counselling; or
(b)a person (the professional ) to whom a family counsellor refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c)in any court (whether or not exercising federal jurisdiction); or
(d)in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2)Subsection (1) does not apply to:
(a)an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b)a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3)Nothing in this section prevents a family counsellor from disclosing information necessary for the counsellor to give a certificate of the kind mentioned in paragraph 16(2A)(a) of the Marriage Act 1961 .
(4)A family counsellor who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
Section 10H
Confidentiality of communications in family dispute resolution
(1)A family dispute resolution practitioner must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution, unless the disclosure is required or authorised by this section.
(2)A family dispute resolution practitioner must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.
(3)A family dispute resolution practitioner may disclose a communication if consent to the disclosure is given by:
(a)if the person who made the communication is 18 or over--that person; or
(b)if the person who made the communication is a child under 18:
(i)each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii)a court.
(4)A family dispute resolution practitioner may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of:
(a)protecting a child from the risk of harm (whether physical or psychological); or
(b)preventing or lessening a serious and imminent threat to the life or health of a person; or
(c)reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d)preventing or lessening a serious and imminent threat to the property of a person; or
(e)reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f)if a lawyer independently represents a child's interests under an order under section 68L--assisting the lawyer to do so properly.
(5)A family dispute resolution practitioner may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988 ) for research relevant to families.
(6)A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8).
(7)Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure.
Note: This means that the practitioner's evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances.
(8) In this section:
"communication" includes admission.
Section 10J
Admissibility of communications in family dispute resolution and in referrals from family dispute resolution
(1)Evidence of anything said, or any admission made, by or in the company of:
(a)a family dispute resolution practitioner conducting family dispute resolution; or
(b)a person (the professional ) to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person;
is not admissible:
(c)in any court (whether or not exercising federal jurisdiction); or
(d)in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties).
(2)Subsection (1) does not apply to:
(a)an admission by an adult that indicates that a child under 18 has been abused or is at risk of abuse; or
(b)a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse;
unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.
(3)Subsection (1) does not apply to information necessary for the practitioner to give a certificate under subsection 60I(8).
(4)A family dispute resolution practitioner who refers a person to a professional (within the meaning of paragraph (1)(b)) must inform the professional of the effect of this section.
At the hearing before me on 8 August 2012 counsel for the Children’s Contact Service were unable to explain the basis upon which the Intake Assessment for the parties seeking supervised contact fell within the definition of “family counselling” and therefore obtain the confidentiality protection for the communications under section 10D.
Similarly, counsel was not able to provide a basis upon which the Court should accept that the Intake Interview was a process that fell within the definition of “Family Dispute Resolution” in section 10F to be protected by the section 10H Confidentiality provision.
Counsel for B Pty Ltd relied upon the Full Court decision of Relationships Australia v Pasternak and Pasternak and Children’s Representative (1996) FLC 92-699 which dealt with the provisions concerning confidential family counselling under the Act at that time (section 18).
The provisions of the Act at that time were similar to the existing provisions. That decision of the Full Court was made upon the basis that B Pty Ltd was an organisation which provided counselling and that the purpose of the legislation was to protect the conference with a marriage counsellor from disclosure of information.
In this matter the Court is not satisfied that the material provided by the parties to the Children’s Contact Service when registering with the Children’s Contact Service (and being interviewed for the purposes of later attending to have the proposed supervised contact time) is either marriage counselling or dispute resolution which would provide it with the statutory protection from disclosure.
Later in Relationships Australia v Pasternak and Pasternak and Children’s Representative (Supra) the Full Court considered the possible immunity from inspection because of public interest.
In paragraph 2.2 of the Notice of Objection, B Pty Ltd claim “… the documents are protected from production on the grounds of public interest immunity”. It was submitted that the Intake Assessment process conducted by the Suburb C Children’s Contact Service was a process which should be considered confidential as there was a need for the participants to give information in what was described as a “full and frank” manner.
Counsel for the mother and father did not oppose the disclosure of the information by the contact centre.
The decision of the High Court in Northern Territory of Australia v GPAO (1999) FLC 92-838 established that the Evidence Act 1995 (Cth) provisions do not apply to pre-trial procedures. As such the common law applicable in the appropriate State applies. In any event the Evidence Act 1995 (Cth) does not contain any provisions about the confidentiality of information and records relevant to these proceedings save and except that section 135 of the Evidence Act 1995 (Cth) provides:
Section 135
General discretion to exclude evidence
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Section 135 does not apply to the pre-trial process of subpoena inspection.
In this particular case the Court considers it appropriate to balance the possible usefulness of any information, its relevance to the proceedings before this Court and any possible public interest immunity.
In the decision of Goldy & Goldy (No 2) [2011] FamCA 418 at paragraph 2 I referred to the need to be wary about issuing and enforcing subpoenas to an organisation which relies upon confidentiality for its very existence. That case related to information obtained by Kids Helpline, where the issue of confidentiality was of great significance.
In this matter the objection by the Children’s Contact Service is on the basis that the Intake Assessment is considered confidential and should be the subject of immunity from disclosure in order that parties using the service should feel free to discuss openly all matters relating to the children’s welfare.
In this matter the relevance of the information obtained at the Intake Assessment relates to the attitude of the parties. The Intake Assessment process was not successful. The orders for contact to be supervised at the Contact Service were later discharged and replaced by other orders providing for the father to have contact supervised by other people.
In this particular case therefore the relevance of the evidence appears to be limited to the dispute about the attitude of each of the parents when attending the Intake Assessments.
Taking into account the current status of the proceedings and the significant issues to be determined in these proceedings, I am not satisfied that the documents sought in the subpoena in this case are likely to provide information which is sufficiently relevant to the issues which need to be determined.
Whilst B Pty Ltd may not have established the protection of public interest immunity the limited relevance of the Intake Assessment process in these proceedings makes it unnecessary to override the claim of confidentiality.
I therefore dismiss the subpoena.
I certify that the preceding forty-two (42) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Dawe delivered on 14 December 2012.
Associate:
Date: 14 December 2012
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