Unitingcare Unifam Counselling and mediation & Harkiss and Anor 2011 FamCAFC 159

Two parents attended a family counselling session at an agency and later consented to documents about the session being disclosed to court and to the parties.  However the agency declined to provide the documents on the grounds of confidentiality.  The trial judge considered that as both parents had consented to the documents being disclosed the agency had no discretion on the matter, and issued a subpoena.  The judge considered that the possibility that the evidence was inadmissible evidence did not prevent disclosure to the court.  The agency appealed against the subpoena.

The appeal court noted that 3 sections of the Family Law Act outline a court’s duties and powers relating to evidence and are relevant to subpoenas: 10D(3), 69ZX, and 10E(2).

Section 69ZX(1) authorises a family court to identify:

• matters on which parties are to present evidence
• who is to present evidence on remaining issues
• how particular evidence is to be given
• if the court considers that expert evidence is required
• the number of experts who may provide evidence

The appeal court noted that a subpoena can be viewed in the nature of a ‘fishing expedition’ or a discovery request involving a third party by seeking to find a basis for a complaint, and that this type of subpoena can be seen as oppressive.

The appeal was allowed and the subpoena was dismissed.