Counseling Sessions Revealing Possible Child Abuse and Family Violence Deemed Admissible Evidence By Family Court

The case of Douglas & Mauldon [2015] FCCA 2217 (17 August 2015) was a Federal Circuit Court of Australia case about parenting matters between the Applicant wife and Respondent husband.  The case involved objections to documents requested by way of subpoena.  The subpoena requested information from The Benevolent Society about counselling services that they provided to the wife and children.  Both The Benevolent Society and the wife objected to the documents and information being made available to the husband.

Relative Law

Family Law Act 1975 (Cth) (“Act”)

Federal Circuit Court Rules 2001 (Cth) (“FCC Rules”)

Evidence Act 1995 (NSW) (“NSW Evidence Act”)

Evidence Act 1995 (Cth) (“CTH Evidence Act”)

Background

The wife was seeking sole parental responsibility for the couple’s two children and for the children to have no contact with the husband.  The husband had been convicted of criminal offences and jailed.  These offences included crimes against children below the age of 16 years.  Some of the offences were perpetrated against the couple’s children.  As a result of the husband’s crimes, the Department of Immigration revoked his residency visa.  When the husband was released from jail he was placed into immigration detention.

Subpoena of Information

An Independent Children’s Lawyer (“ICL”) was assigned to represent the children’s best interests under section 68L of the Family Law Act 1975 (Cth) (the “Act”).  The subpoena originated from the ICL and was directed towards The Benevolent Society.  The subpoena requested information about counselling services that the Benevolent Society provided to the wife and children and included a request for information about what was discussed during counselling.

Objections to Subpoena

Both the wife and The Benevolent Society had objected to the subpoena.  The Benevolent Society objected on the grounds that the counselling for the wife and children was made in confidence and was for child welfare services.  The wife objected on the grounds that the documents produced were likely to contain allegations made against the husband which were made in confidence.  The wife asked that the documents not be shown to the husband or the husband’s legal representative as this would affect the well-being of the wife and children.

Subpoena Rules and Objections

In considering the objections the Court looked at the Federal Circuit Court Rules (“FCC Rules”), Part 15A relating to subpoenas.  Rule 15A.13(2) provides that a person must object to a subpoena under rule 15A.14 by the date the subpoenaed information is due.  The objections to the ICL’s subpoena were made within the time limit.  The Court stated it could set aside a subpoena or part of a subpoena under rule 15A.09 subject to the rules of evidence and due process.

The Court noted that there were no grounds for a claim of privilege under section 126A of the NSW Evidence Act for professional confidential relationship privilege.  The Court then looked at the duties owed by the parties to make the information requested by subpoena available to the Court.

Admissibility of Evidence and Disclosure Requirements

The Court was concerned that the wife and The Benevolent Society were attempting to withhold information that revealed allegations of child abuse or family violence.  These allegations could meet the definition of the section 4 interpretation of child abuse and section 4AB definition of family violence under the Act.  Following on from this are sections 67Z and 67BA of the Act which apply if an interested person makes allegations of child abuse.  In such a case the interested person must file a Notice of Risk to the Court under Part 22A of the FCC Rules.  In such a case the Court must abide by section 67ZBB of the Act.  This section requires the Court to consider making interim or procedural orders to enable evidence about allegations of abuse or family violence to be gathered and to protect the child.

The Court stated that the wife has obligations under the FCC Rules, the Act and common law to provide evidence about allegations of child abuse or family violence.  The wife’s objection to the production of the subpoenaed information was contrary to her obligations.

The Court then looked at the confidentiality protection provisions for family counselling available under section 10D of the Act.  The Court found that the counselling provided by The Benevolent Society did not meet the definition of family counselling under the Act.

The Court considered that the information subject to the subpoena was directly relevant to the question of the risk of child abuse or family violence.  It was therefore relevant evidence under section 55(1) of the Commonwealth’s Evidence Act and was admissible to the proceeding.

Based on the above considerations the Court found that the subpoenaed information should be made available to all parties involved in the case.  However, the objections as far as the information that would disclose the location of the wife or children or any other identifying information was upheld.  As such the Court allowed the redaction of any identifying information before the husband could view The Benevolent Societies’ documents.

Conclusion

This case shows that parties may subpoena relevant evidence which relates to either child abuse or family violence.  Unless subpoenaed information is covered by legal professional privilege, or there is an exception under applicable legislation (including the Act), the subpoenaed information is admissible.  This can include confidential information such as in this case relating to counselling services and what was discussed during counselling.