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Barron v Cleveland [2021] NZFC 5169

Published 16 December 2021

Admissibility of evidence — therapist report — alleged sexual conduct — Evidence Act 2006, ss 5, 7, 8, 52 & 69 — Family Court Act 1980, s 12A — Care of Children Act 2004, s 4 — United Nations Convention on the Rights of the Child — R v X [2009] NZCA 531 — Greenbaum v Southern Cross Hospitals Ltd [2019] NZCA 438 — Mental Health Addiction & Intellectual Disability Service v Hussain [2020] NZCA 81 — Mercer v McDaniel [2021] NZFC 3403. The parties were engaged in care and contact arrangement proceedings in relation to their two children. A hearing had been scheduled to determine the admissibility of a therapist report (assessment outcome summary) in respect of the respondent's older child from a previous relationship. There was an allegation that the respondent's eldest child had sexually abused another child, and the applicant argued that this meant that the parties' two young girls were unsafe in the care of respondent. The respondent sought to produce the therapist report into evidence to show that the eldest child was now deemed safe to be around the two younger children. SAFE, the specialised therapeutic services provider, opposed the application on the basis that the assessment outcome summary was confidential information and ought to be excluded pursuant to s 69 of the Evidence Act. The issues for determination were: whether the assessment outcome summary was to be excluded under s 69 of the Evidence Act; and if so, whether it was nonetheless admissible under s 12A of the Family Court Act. The Judge considered the public interest factor and the mandatory criteria under s 69(3) and concluded that the balance fell in favour of disclosure as the report was directly relevant to the substantive care and contact arrangement proceedings. The Judge went on to note for the sake of completeness that even if the wrong conclusion was reached in relation to the s 69 considerations, the Judge would have nevertheless admitted the evidence under s 12A of the Family Court Act. The Judge made an order directing the release of the assessment outcome summary to counsel. Judgment Date: 4 June 2021. * * * Note: names have been changed to comply with legal requirements. * * *