ANGLICARE WA & ANOR -v- DEPARTMENT OF FAMILY & CHILDREN'S SERVICES [2000] WASC 47

ANGLICARE WA & ANOR -v- DEPARTMENT OF FAMILY & CHILDREN'S SERVICES [2000] WASC 47
Facts:
The Department, is making a contested care and protection application in the Children's Court of WA in respect of six children who were apprehended last year.

The children range in age from nearly 13 to 4. Except for one child, they have been in foster care for some time separated from their parents and some of their brothers and sisters. It is important to everyone that the Children's Court proceedings are completed as soon as possible with all admissible evidence put before the magistrate.
Ms Keenan is a family and child counsellor she works for Anglicare WA and she was consulted by the family.

Between 22 July 1999 and 16 December 1999 she saw all of them, except one, on approximately six occasions. In the course of these sessions she has obtained information. To her belief during the course of these attendances she has not needed to comply with the legal requirements to notify the department of any reasonable grounds to suspect any of the children were abused or at risk of being abused.
Issue: the admissibility of information obtained by the counsellor during the sessions in a State Court – the FLA does not apply in a State court otherwise pursuant to the FLA the sessions would remain confidential
Held: inadmissible anything said by anyone at meetings, conferences or consultations due to the connection between the two state acts ie
I am of the view the Family Court Act s 64 conditions the directive to the Children's Court in the Child Welfare Act s 30 so as to exempt from admissibility, statements made in the course of counselling sessions with an authorised family and children's counsellor.
Considered
Relationships Australia v Pasternak (1996) 133 FLR 462.
Issue: whether a conflict between the paramountcy of the interests of the child and the public interests and the need to preserve the confidences of a counselling session.

The Court held in favour of the preservation of the confidence.

The case concerned proceedings entirely under the Family Law Act. Where the ordinary meaning of words in the statutes is plain
Distinguished due to:
a Judge cannot invest them with a different meaning in order to arrive at a solution which the particular Judge considers to be socially just. A Judge's duty is to interpret the words used by Parliament.

In the present case there is another reason why a court would be slow to go beyond the plain or literal meaning of the Family Law Act. The Family Law Act is a statute of Federal Parliament. There are good reasons why the Commonwealth would seek to limit the reach of the Federal Act into the jurisdiction of State courts. Such a reach would have constitutional implications. I would be reluctant to interpret s 19N to extend its ambit into proceedings in the Children's Court of Western Australia without clear and express words being used by Parliament to achieve that purpose.

For these reasons, I hold that the Family Law Act 1975 has no application to the present case or, in language more suited to injunctive relief, the plaintiffs have failed to establish in this respect a serious question to be tried.
Support is also derived from Centacare Central Queensland v G and K (1998) FLC 92-821 which, inter alia, confirmed the correctness of Relationships Australia v Pasternak.
Relied upon the following case see comments below
In Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355, the majority, McHugh, Gummow, Kirby and Hayne JJ said at 381 to 382:
"The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute: see Taylor v Public Service Board (NSW) (1976) 137 CLR 208 at 213, per Barwick CJ. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole': Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 320, per Mason and Wilson JJ. See also South West Water Authority v Rumble's [1985] AC 609 at 617, per Lord Scarman, 'in the context of the legislation read as a whole'. In Commissioner for Railways (NSW) v Agalianos (1955) 92 CLR 390 at 397, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed: Toronto Suburban Railway Co v Toronto Corporation [1915] AC 590 at 597; Minister for Lands (NSW) v Jeremias (1917) 23 CLR 322 at 332; K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 312, per Gibbs CJ; at 315, per Mason J; at 321, per Deane J.
A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals: Ross v The Queen (1979) 141 CLR 432 at 440, per Gibbs J. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions: see Australian Alliance Assurance Co Ltd v Attorney-General (Q) [1916] St R Qd 135 at 161, per Cooper CJ; Minister for Resources v Dover Fisheries Pty Ltd (1993) 43 FCR 565 at 574, per Gummow J. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other': Institute of Patent Agents v Lockwood [1894] AC 347 at 360, per Lord Herschell LC. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.
Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision: The Commonwealth v Baume (1905) 2 CLR 405 at 414, per Griffiths CJ; at 419, per O'Connor J; Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13, per Mason CJ. In The Commonwealth v Baume (supra) Griffith CJ cited R v Berchet (1688) 1 Show KB 106 [89 ER 480] to support the proposition that it was 'a known rule in the interpretation of Statues that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if any other construction they may all be made useful and pertinent'."
Although the High Court's comments are made in respect of apparently conflicting provisions within one statute, the comments have general application to apparently conflicting provisions within different statutes both passed by the same Parliament.

Adapting those comments to the present case, I am of the view the Family Court Act s 64 conditions the directive to the Children's Court in the Child Welfare Act s 30 so as to exempt from admissibility, statements made in the course of counselling sessions with an authorised family and children's counsellor.

10J Admissibility of communications in family dispute resolution and in referrals from family dispute resolution

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.

admissibility of statement made s.10J: Anglicare WA v Department of Family and Childrens

admissibility of statement made s.10J: Anglicare WA v Department of Family and Childrens
Services (2003)

Abuse allegations; Expert evidence and the opinion of the Full Court

In an article by Sperling J presented at the Supreme Court of New South Wales Annual Conference in 1999 and published as “Expert Evidence: The Problem of Bias and Other Things” (2000) 4 The Judicial Review 429, his Honour observed at 432:
“The actual role of the expert witness, particularly in major litigation, is that the expert is part of the team. He – it usually is a “he” – contributes to the way the case is framed and indirectly to decisions as to what evidence is to be got in to provide a basis for his opinion. His report is honed in consultation with counsel. Then, when it comes to the trial he is a front line soldier, carrying his side’s argument on the technical issues under the fire of cross-examination.Natural selection ensures that expert witnesses will serve the interests of their clients on this way. If the expert measures up he will be kept on and he will be used again by the same client, the same solicitors and others. If he does not measure up, he will be dropped from the case or never used again by anyone. He then disappears from the forensic scene.An appearance of objectivity is a marketable attribute. Cross-examination or contrary evidence may unmask dissemblance or may not. A judge is ill-equipped to diagnose bias in an expert witness. It is likely, therefore, that the incidence of bias as assessed by surveyed judges in the Freckelton report is an under-estimate.Judges are interested in valid fact-finding. So long as the adversarial system continues unremittingly, however, the interests of litigants in presenting expert evidence that may win the case will prevail over the interests of judges in obtaining objective assistance on technical issues as a basis for valid fact finding.”

We are of the opinion that the case highlights the need for reform in the area of expert evidence. In this regard, we note that the previously cited article by Sperling J offers a number of recommendations which we see as applicable to the family law jurisdiction, such as:
•
Promulgating a code of conduct for expert witnesses;
•
Consideration of amending statutes to make breach of a duty of objectivity professional misconduct;
•
Greater use of the power to refer out technical issues for determination by an expert referee; and
•
Amendments to the Rules of Court in respect of matters such as an express power to limit expert evidence to that of a single expert selected by the parties or the Court in appropriate cases.

Re W and W : (Abuse allegations; Expert evidence] [2001] FamCA 216 (14 March 2001)

Re W and W : (Abuse allegations; Expert evidence] [2001] FamCA 216 (14 March 2001)

In Re W and W: (Abuse Allegations; Expert Evidence) [2001] Faro CA 216 the Full Court of the Family Court (constituted by Nicholson CJ, O'Ryan and Kay JJ) heard an appeal from the decision of Barlow J that: * three daughters of a marriage, T aged 12, S aged 10 and O aged 6, should reside with the husband; * the husband should have sole responsibility for the day-to-day and long-term decisions concerning the care, welfare and development of the children; and * the children should have contact with the wife each Sunday under supervision from a professional service. The wife appealed against all three orders. The Evidence at Trial The wife had been the major care-giver to the children since 1988 when the oldest, T, had been born. A number of physical and mental health issues were the subject of evidence, particularly in relation to the wife. Between 1991 and 1992 the wife suffered 'in acute form' from chronic fatigue syndrome and then had a recurrence in 1993 after a period of depression in 1992. T experienced a number of difficulties at school and was seen by a psychologist in 1994. The wife and the husband commenced to attend marriage guidance counselling and in 1997 the wife began to develop an interest in 'New Age' beliefs, including undertaking a course in reiki. The object of the course was to train participants in the transference of reiki of 'universal energy' by opening people's 'crown chakra'. She became interested in 'channelling' which she described in an affidavit as 'a process whereby a medium allows another entity to channel energy and to speak through the medium'. She became convinced she could communicate with spirits and past lives. She did not hear or converse with them but experienced interaction with them as an 'inner feeling'. She regarded her daughter T as a medium and informed her sister that T was 'able in the most natural way, to hear and to see and to have dialogue with the spirit world'. She acknowledged that in 1997 and 1998 she became 'absolutely immersed in spiritual matters'. She agreed in evidence that some of the beliefs that she held during this period could be described as 'bizarre' and that during the 1997-1998 period she was living in a fantasy world. In 1998 the wife stated in documentation for the Family Court: As a result of my own development, my eldest child [T] has started accessing deeper levels of knowledge and is sharing it with me. Although all but nine years of age, she is of great influence to me, and is a great teacher. She has by far had the most influence on my metaphysical interest. In the beginning of 1997, my eldest daughter told me that my mission in life is 'to learn to speak to my Inner-Self and teach the same to others' also, 'to show the world that in reality there is only One God'. I believe and trust (or rather KNOW) that this training will assist me to achieve these goals (at [24]). During the same year the husband permitted the wife to perform reiki or spiritual healing on him, although he did not believe in it, but said that he enjoyed it as 'somewhat relaxing'. In late 1998 further attempts were made by the husband to obtain family counselling. Around the same time the wife complained to T's teacher that T was being emotionally and sexually abused by the husband. The teacher drew the conversation to the attention of the principal who made a formal notification to the Department of Family and Children Services ('the Department'). A further allegation was made around the same time that the husband had exposed himself to T and S with an erect penis. Generally, the wife alleged that the husband had engaged in inappropriate sexualised behaviour. At one point she maintained the T had alleged to her that her father had touched her 'everywhere' and had wanted to accompany her into the shower. However, the wife left the children in the care of the husband while she attended a further course in relation to her new age beliefs. The husband departed the matrimonial home and consulted a Relationships Australia counsellor who then, of his own volition, made a notification to the Department after the husband made admissions of inappropriate behaviour with T. Toward the end of the year the wife maintained that T made detailed disclosures of her breasts being touched by her father and her vagina being digitally penetrated by him on many occasions over several years. When T was interviewed by officers of the Department at the end of 1998 she alleged that she had been abused by: * the husband; * the husband's parents; and * an uncle. She also alleged that the husband had abused her younger sister, S. Around the same time the wife was hospitalised for depression. The husband was charged with a number of criminal offences but T's evidence at his trial in the District Court of Western Australia was erratic, major discrepancies emerging between what she said in examination-in-chief and re-examination, on the one hand, and cross-examination, on the other hand. However, evidence was given to the Family Court that T was subjected to wide-ranging attacks during cross-examination that she found very distressing. The prosecution filed a nolle prosequi and the prosecution was terminated. Nicholson CJ and O'Ryan J concluded that the evidence of a support person for T supported the view that it was the nature of the cross-examination that produced a negative reaction from the child and not any consciousness on her part that she had been caught out in telling lies. We have no doubt that the giving of evidence against a father in proceedings such as this would constitute a traumatic experience for any child and the traumatic nature of the experience could only be exacerbated by a searching cross-examination (at [72]-[73]). The Expert Evidence at Trial Dr Lord, a court-appointed psychiatrist, provided a report to the court and also gave evidence. Dr Lord gave weight to the fact that there was a document on the Departmental file in which the husband had disclosed unusual, if not aberrant, sexual behaviours. He noted that the husband denied that he had sexually assaulted T but that T had made multiple allegations against him, albeit somewhat inconsistently, in the District Court prosecution of the husband. He gave substantial evidence about his interviews with T. He was able to establish limited rapport with T, especially when he spoke with her about issues of good and bad touching--'She could not be encouraged to talk about private parts. [T] made no disclosure of inappropriate touching of sexual assault. [T] did not appear to be distressed. Her attitude was of distance and detachment' (at [131]). He concluded that T seemed angry with both parents and behaved in his presence in defiant and challenging ways--'it was impossible to make any sense of the child's behaviour especially in the absence of any indication of apprehension, sadness of distress' (at [133]). He observed T in the presence of her father. She was reserved and sat next to him, interacting animatedly and apparently comfortably with him. Her conduct was similar to that of her younger sisters. Dr Lord concluded: Whilst [T] had every opportunity to confirm her previous disclosures as to sexual abuse as perpetrated by her father and other relatives, she chose not to do this. It is possible that the withdrawal of [T] into herself, at times, and her challenging and somewhat defiance (sic) stand at other times reflected an unwillingness to reconsider traumatic experiences. It is also possible, though, that the child's responses were consistent with those of an individual unwilling to acknowledge the discovery of fabrication. The possibility of fabrication may also assist understanding of the apparent anger directed by [T] towards mother and the enjoyment clearly demonstrated by the child in interactions with father. Nicholson CJ and O'Ryan J were not inclined to read much into the reactions of T to the interviews by Dr Lord. They observed that she had already been subjected to Departmental and police interviews, as well as a searching and unpleasant experience in the witness box--'With all respect to Dr Lord, we feel that his interviews at this stage bordered upon institutional abuse of the child insofar as they sought to investigate her allegations. He can hardly be criticised for this however as he had been appointed by the Court to do so' (at [140]). Dr Dixon, a psychiatrist, was called on behalf of the wife. He treated her in therapy and had not seen the husband or T. He was unable to identify a connection between the wife's New Age beliefs and T's allegations. He rejected as 'preposterous' that the children should be removed from their mother. Barlow J did not accord any significant weight to his evidence on the basis of the absence of professional detachment from his patient, particularly in light of changes he made to his report after consultation with the wife. Dr W, a New South Wales child psychiatrist, was called on behalf of the husband. Dr W expressed the view that there was a serious risk that any form of contact between the wife and the children due to her new age beliefs.

As to the evidence of Dr W, we are of the opinion that Dr W demonstrated bias and thus little, if any weight, should have been attached to his opinion. In our view, he stepped out of the role of an expert witness and assumed the role of advocate.

It follows in our view that the trial Judge’s decision must be set aside.

We are of the opinion that the case highlights the need for reform in the area of expert evidence. In this regard, we note that the previously cited article by Sperling J offers a number of recommendations which we see as applicable to the family law jurisdiction, such as:
• Promulgating a code of conduct for expert witnesses;
• Consideration of amending statutes to make breach of a duty of objectivity professional misconduct;
• Greater use of the power to refer out technical issues for determination by an expert referee; and
• Amendments to the Rules of Court in respect of matters such as an express power to limit expert evidence to that of a single expert selected by the parties or the Court in appropriate cases.
We think that there is considerable merit in these proposals. We note that some have been adopted by changes to the Rules of the Supreme Court of New South Wales (see Bill Madden “Changes to the role of the expert witness” (2000) 38 (5) Law Society Journal 50) and that the last one is also favoured by the Family Court of Australia’s Future Directions Committee Report which was published in July 2000 (see http://www.familycourt.gov.au/court/html/future_summary.html).

10H Confidentiality of communications in family dispute resolution

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.

10P Immunity of arbitrators

10P Immunity of arbitrators
An arbitrator has, in performing his or her functions as an arbitrator, the same protection and immunity as a Judge of the Family Court has in performing the functions of a Judge.
Note: Communications with arbitrators are not confidential, and may be admissible in court.