Casano and Antipov (No 2)

[2015] FamCA 766

FAMILY COURT OF AUSTRALIA

CASANO & ANTIPOV (NO 2) [2015] FamCA 766

FAMILY LAW – EVIDENCE – Whether the diaries are a confidential document – Whether disclosure of the contents of a confidential document prepared for the dominant purpose of the client amounts to legal professional privilege – found that privilege does not arise, it does not fall within either of those sections for the various reasons given

Evidence Act 1995 (Cth) ss 117, 118, 119, 122

APPLICANT: Mr Casano

RESPONDENT: Ms Antipov

INDEPENDENT CHILDREN’S LAWYER: Ms Rowley

FILE NUMBER: PAC 3528 of 2012

DATE DELIVERED: 8 September 2015

PLACE DELIVERED: Parramatta

PLACE HEARD: Parramatta

JUDGMENT OF: Hannam J

HEARING DATE: 7 September 2015

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Greenaway

SOLICITOR FOR THE APPLICANT: Rafton Family Lawyers

COUNSEL FOR THE RESPONDENT: Mr Guterres

SOLICITOR FOR THE RESPONDENT: Legal Aid NSW Sydney Central Family Law

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Faloon

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Ms Rowley of Rowley & Associates

Orders

1. Leave is granted to the Respondent mother’s legal representatives and the Independent Children’s Lawyer to inspect the Applicant father’s diaries.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Casano & Antipov (No 2) 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 PARRAMATTA

FILE NUMBER: PAC 3528  of 2012

Mr Casano

Applicant

And

Ms Antipov

Respondent

REASONS FOR JUDGMENT

1. In the course of competing parenting applications in relation to a six-year-old little boy, the mother through her counsel called for the father to produce diaries, which he says that he had kept since separation.  Eight diaries were produced in all, but through his legal representative the father objected to access being granted to the diaries on the basis that such access would result in the disclosure of the contents of a confidential document which was prepared for the dominant purpose of the client – that is, the father – being provided with legal services relating to proceedings in which the client is or may be, or was or might have been, a party.

2. In other words, the father raises the objection on the basis of legal professional privilege. Section 119 of the Evidence Act 1995 prohibits evidence being adduced in certain circumstances, and I am of the view that this section of the Act is in fact directed to adducing evidence which should be given its ordinary legal meaning, and that section does not cover the issue of access being granted to documents produced.  However, it very well may result almost immediately – depending upon the contents of the document – in cross-examination on that diary.  I will, therefore, deal with the application also on the basis that it is an objection to answering questions concerning the diaries, as that would result, in the submission of the father, in the disclosure of the contents of what he says is a confidential document.

3. As far as the documents themselves are concerned – that is, the diaries – the father was asked under cross-examination in the case about the personal diary that he refers to in his affidavit.  He agreed under cross-examination that he kept a personal diary and that he based his affidavit on that diary.  And he also agreed that that is why he was able to be so specific about the events that he alleges in his affidavit.  When he was asked about his purpose in keeping a diary, the father said he could not initially recall that purpose but said that he thought that it was suggested by his lawyer and the Department of Family and Community Services.

4. On the voir dire in relation to the production of the diaries, the father said that he intended the diaries to be a record of events at the time when his son was in his care.  On the cover of each of the diaries he had written the words “prepared for use of solicitor only” and said that he had made this notation on each of the diaries in question at the time that he commenced recordings in them.  He said that he subsequently provided the diaries to his solicitor.  Under cross-examination on the voir dire the father also agreed that he had shown the diary, or diaries, to one detective but denied the proposition put to him that he had shown the diaries to other police officers.

5. It is argued on behalf of the father that permitting access to the diaries would result in the disclosure of a confidential document which, pursuant to section 119 (which is the basis of the claim) was said to have been prepared for the dominant purpose of the client being provided with professional legal services.

6. In relation to section 118, which in fact it appears is the section that’s being relied on, the Court must find in order for the prohibition to be applied, that the document – that is, the diaries – are in fact a confidential document.  Pursuant to the definition under section 117, a confidential document means a document prepared in circumstances that when it was prepared, that the person who prepared it, or the person for whom it was prepared, was under an express or implied obligation not to disclose its contents, whether or not that obligation arises under law. 

7. There is no dispute that the documents in question – that is, the diaries – were prepared by the father, who is a client, but the question does arise whether the documents are a confidential document and whether they were prepared for the dominant purpose of the lawyer providing legal advice or professional legal services, depending on section 118 or section 119, or a later issue which I will consider which arises in relation to the mother’s argument.

8. As far as the circumstances in which the documents were prepared are concerned, there is in my view conflicting evidence given by the father about the person for whom the diaries were prepared.  In his cross-examination in the proceedings – that is, not on the voir dire – the father initially said that he could not recall the purposes, and then said that it had been suggested by his lawyer and the Department of Family and Community Services.  He also said, and maintained in the voir dire, that he intended it to be a record of events of when his son was in his care.  As indicated in the case, he also said that his affidavit was based upon the diaries.

9. The definition of “confidential document” depends upon the document having been prepared for another person who is under an obligation not to disclose it, or by a person who was under an express or implied obligation not to disclose the contents.  In these circumstances it’s argued by the father, as I understand it, that he prepared the document for his lawyers, who were under an expressed or implied obligation not to disclose the contents.

10. In these circumstances, I am unable to find that, notwithstanding the endorsement on the cover of the diaries, that they were in fact prepared by the father for his lawyer.  According to his oral evidence, the diaries may have been prepared at the suggestion of his lawyer or the Department of Family and Community Services.  Notwithstanding the endorsement, he still maintained that the documents were prepared for the purposes of having a record of the events and his affidavit in these proceedings was based on them.

11. If, however, I do accept that they were documents prepared by the father for his lawyer, the question then arises whether the lawyer was under an express or implied obligation not to disclose their contents.  There is no evidence in the case, including on the voir dire, about why the father wrote the words “prepared for the use of my solicitor only” on the cover of the diaries and yet maintained that the diaries were intended to be a record at the time of the events.  There is no evidence of any discussion or the circumstances in which he came to write that, or of the circumstances in which he gave his diaries to his lawyers, from which it could be concluded that there was an express or implied obligation not to disclose the contents.

12. Indeed, his evidence that his affidavit was based on the diaries, and his agreement to the proposition that the reason that his affidavit is so specific as to dates because it was based on the affidavit, make it clear that there was not an express or implied obligation not to disclose the contents.  I am of the view that the diaries are not a confidential document because of the circumstances of them being prepared and being unable to find that there was an express or implied obligation not to disclose the contents.

13. If it were to be the case that the documents could be categorised in that way, there is also the issue raised by the mother, and that is whether the father has waived the privilege in accordance with section 122(2).  That provision provides that privilege may be lost and that the division does not prevent the adducing of evidence if the client has acted in a way that is inconsistent with him objecting to the adducing of evidence because it would result in a disclosure of the kind referred to in section 118 or 119.  Under this section, if some prior conduct of the party objecting to the disclosure of the material prima facie protected by the client legal privilege is inconsistent with relying upon that protection, then the privilege is lost.

14. It is submitted by the mother that the conduct of the father, which is inconsistent with the privilege, is clear from his recent communication between himself and the police officer that an investigation based upon a complaint that he made is still ongoing.  In other words, notwithstanding these proceedings, the father is still seeking to have matters investigated by police and that he showed the diaries to a police officer for the purposes of that investigation.

15. In these circumstances, and, in particular, in light of the evidence that the father based his affidavit upon his diaries, I am of the view that the privilege does not arise. It does not fall within either of those sections for the various reasons given, and accordingly access is granted to the documents.  However, at this stage, as is the usual practice, and as it was specifically sought, the access is limited to access to the mother’s legal representatives and the Independent Children's Lawyer.

I certify that the preceding fifteen (15) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Hannam delivered on 8 September 2015.

Associate: 

Date:  17 September 2015