Jermyn & Carling
[2012] FMCAfam 814
•8 August 2012
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| JERMYN & CARLING | [2012] FMCAfam 814 |
| FAMILY LAW – Practice and procedure – objection to subpoena – documents produced by Applicant’s psychologist – relevance – public interest test. |
| Family Law Act 1975, ss.60CA, 60H, 62G, 65DAA(5), 65F, 69ZN, 69ZQ Evidence Act 1995 (Cth), ss.55, 69, 135, 136 Evidence Act 1995 (NSW), s.126B Judiciary Act 1903 Privacy Act 1988 (Cth) Freedom of Information Act 1982 (Cth) |
| U & U (2002) 211 CLR 238 Duits & Duits 2006 CanLII 14407 Mellish v Martinson 1993 CanLII 1825 R v SLR 1991 CanLII 4532 “The Psychotherapist-Patient Privilege In The Family Court: An Exemplar Of Disharmony Between Social Policy Goals, Professional Ethics, And The Current State Of The Law” by Deborah Paruch published in Eliminating Unintended Bias National Association of Children’s Counsel Manual 2011. Baker v. Campbell (1983) 153 CLR 52 R v RJS 45 CR (3rd) 161 |
| Applicant: | MS JERMYN |
| Respondent: | MS CARLING |
| File Number: | PAC 3514 of 2009 |
| Judgment of: | Harman FM |
| Hearing date: | 20 July 2012 |
| Date of Last Submission: | 20 July 2012 |
| Delivered at: | Parramatta |
| Delivered on: | 8 August 2012 |
REPRESENTATION
| Solicitors for the Applicant: | Mahony Family Lawyers |
| Solicitors for the Respondent: | Jacqui Griffin Solicitor & Attorney |
| Solicitors for the Independent Children’s Lawyer: | Legal Aid Commission of NSW |
ORDERS
Leave is granted to the Legal Representatives only and the Independent Children’s Lawyer to inspect material produced on subpoena by Ms S, psychologist as has been excised from the material produced in response to the subpoena.
Otherwise the objection is upheld and the Court declines leave to inspect as regards balance of material produced by Ms S.
Orders are made in accordance with the Minute of Proposed Orders of the Independent Children’s Lawyer marked Exhibit ‘A’ and inserting the name Dr B and amending 1.2.2.
The proceedings are adjourned to 2.15pm on 20 August 2012 for mention and directions (if required) and for the sole purpose of dealing with any objections that are raised to the release and inspection of material produced on subpoena.
The proceedings are adjourned to 2.15pm on 10 October 2012 for further mention and status review.
Subject to the report ordered today having been completed and released to the parties, then the parties and each of them are to ensure:
(a)They have fully read and considered the report and any recommendations contained therein;
(b)They have provided full and proper instructions to their legal representatives; and
(c)Are in a position to authoritatively advise the Court of Orders proposed by them (if different to those proposed in their respective Application and Response), the judiciable issues that require hearing, and any variance that is required or suggested to be required as regard draft trial plan, marked Exhibit B.
IT IS NOTED in the event that all issues are not resolved and the matter requires judicial determination hearing dates will, in all probability, be allocated in the week of 21 January 2013.
IT IS NOTED that when the matter was before the Court on 22 June 2012 hearing dates in November 2012 were discussed and, further, it was noted that the Applicant’s consent to the continuation of interim orders was offered on the basis of an expeditious conclusion to the matter. It is on the basis of those circumstances that the matter will be accommodated during the Court’s close down period and to ensure both the final determination of matter occurs expeditiously and that further interim hearing is not necessary.
Pursuant to section 13C of the Family Law Act 1975 the Court directs the parties to forthwith and within 72 hours contact Unifam (omitted) to arrange and attend the first available intake appointment for the purpose of an assessment being undertaken as to what family counselling services might be of benefit to the parents:
(a)In addressing and supporting them in light of such issues as are apparent to intake worker; and
(b)In assisting the parties to develop improved skills as to their communication with each other and to assist or enhance the prospect or possibility of their future cooperative parenting.
Subject to such assessment determining the suitability of services to be offered, the parties and each of them shall then attend at such times, dates and places and pay such fees as are advised by that service until such services provision is either withdrawn or the course of program undertaken is completed.
IT IS NOTED the parties have, through their legal representatives, been advised of the requirement mandated by s.65F for parties to attend family counselling prior to final determination and in the event family counselling has not occurred for reasons other than unavailability of services then any hearing dates ultimately allocated may be vacated so as to allow completion of family counselling.
Pursuant to section 13C of the Family Law Act 1975 the Court directs the parties and the Independent Children’s Lawyer to attend Family Dispute Resolution at a time, date and place and/or by means arranged by the early intervention and dispute resolution sections of the Legal Aid Commission or such other organisation as agreed between the parties. Such time to occur as no later than 10 October 2012.
Leave is granted to the Independent Children’s Lawyer to provide to the Legal Aid Commission and/or Family Dispute Resolution Practitioner conducing Family Dispute Resolution a copy of the report of Dr B upon it becoming available.
IT IS NOTED that publication of this judgment under the pseudonym Jermyn & Carling is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3514 of 2009
| MS JERMYN |
Applicant
And
| MS CARLING |
Respondent
REASONS FOR JUDGMENT
These are proceedings involving competing parenting applications between the Applicant, Ms Jermyn, and the Respondent, Ms Carling.
Ms Jermyn and Ms Carling are the parents (pursuant to s.60H of the Family Law Act 1975) of two children the subject of these proceedings, namely:
a)X born (omitted) 2004 (presently aged 7.5 years) ; and
b)Y born (omitted) 2006 (presently aged 6 years).
The proceedings were commenced by Application filed 3 May 2012. A Response was filed in the proceedings on 14 May 2012.
The proceedings have been before the Court on a number of prior occasions and interim Orders have been made which provide for an equal shared time arrangement pending further Order of the Court. Those interim orders are reflective of and reinstate final parenting Orders made by consent some few years ago.
The proceedings are likely to be listed for Final Hearing in early 2013 and some months hence.
The matter came before the Court on 20 July 2012 following a listing on 22 June 2012 (and the adjournment of the proceedings on that day) to address:
a)A draft trial plan prepared by the parties (and particularly to determine whether the matter can and will be contained within a four day hearing and thus remain in this Court);
b)The appointment of a Part 15 expert. The parties have not been able to fully agree with respect to same and accordingly some issues remain at large but thankfully confined to:
i)The identity of the expert (and whether it is to be Dr M or Dr B); and
ii)The persons who are to be interviewed by the expert. The parties and the Independent Children’s Lawyer agree that each of the parents and their respective partners and children who live full time as part of their household should be included in report interviews. Contention arises as it is asserted by Ms Carling that two aunties of the children (being relatives of the Applicant, Ms Jermyn) and who have previously provided, at the instigation of Ms Jermyn, respite care to the children or at least X, should be included in the interviews. I will deal with those issues shortly.
c)A significant issue arises as to an objection lodged by each of a Ms S, psychologist, and by the Applicant, Ms Jermyn, regarding the inspection of material produced on subpoena by Ms S and in response to a subpoena served upon her by the solicitors for Ms Carling.
Past history
The parties separated in or about 2008. Shortly after their separation terms of settlement were negotiated between them and which provided for parenting Orders on a final basis. Orders were made between the parties in 2009 and in accordance with the terms of settlement entered into by them.
The consent Orders made between the parties provided for an equal shared care arrangement. This had then occurred from the time of the Orders and until the earlier part of 2012.
In the early part of 2012, more specifically on 27 April 2012, an incident occurred between the parties at a supermarket wherein it is alleged (it being subject to a Form 4 filed by the Applicant and also the subject of proceedings instigated by the police and presently before the Local Court at Katoomba) that the Respondent, Ms Carling, had assaulted and/or abused the child, X, by grabbing his arms and pulling him towards her. As a consequence of these actions an interim Apprehended Domestic Violence Order was sought and made naming both Ms Jermyn and the children as protected persons. The Defendant in the application is Ms Carling. It is also suggested that prior to this event that disclosures had been made by one or both of the children (although in non-specific terms as regard the Form 4) of the children having been previously “hit”.
It is also raised in the evidence of Ms Carling that Ms Jermyn has experienced significant trauma in her childhood in the nature of sexual assaults upon her by relatives. The subpoena issued to Ms S (and, indeed, a number of other subpoena filed the day prior to the listing on 20 July 2012 and thus not yet returnable or the subject of objection) relate, in large part, to the sequela of such childhood experiences.
The objection filed by Ms S reads as follows:
I give notice that I object to the production of some or all of the documents to the Court for the following reasons:
1. The required 10 days notice was not given. Received by fax 14/6/12 and by mail 16/6/12 for production 22/6/12.
2. The contents of this file are privileged information between counsellor/psychologist and include details of childhood abuse which are not relevant to the matter before the court.
I give notice that I object to the inspection/copying of some or all of the documents produced for the following reasons:
1. Insufficient notice given
2. The contents of this file are privileged information between client and psychologist and include details of childhood abuse which are not relevant to the matter before the Court.
The objection filed by Ms Jermyn’s solicitors reads as follows:
The subpoena material contains sensitive medical material that are not relevant to the proceedings given the Orders sought by the Respondent in her application.
In essence the objections that are raised as regards the inspection of subpoena material go to both relevance and matters of public interest. I propose to deal with each shortly.
The expert’s report
The parties are agreed that an expert’s report is required rather than a report pursuant to s.62G. The experience and expertise of an expert is sought to address a number of specific issues that arise in the proceeding and in particular:
a)A diagnosis of Autism Spectrum Disorder with respect to X and, accordingly, how arrangements might best be formulated to accommodate that condition;
b)The past and/or present psychiatric/psychological history of Ms Jermyn.
As indicated above the parties have agreed on the terms of reference for the expert and the expert’s remuneration as well as the general nature and form of an Order to be made for the appointment of an expert. Issue arises as to two separate aspects which will be dealt with independently.
Identity of expert
The Independent Children’s Lawyer proposes the report be prepared by Dr B. He is available to undertake interviews with the parties in mid-September 2012.
The Applicant supports the Order proposed by the Independent Children’s Lawyer.
The Respondent, Ms Carling, proposes that Dr M be retained and commissioned as the Court’s expert. He is available approximately three weeks earlier to conduct appointments.
Further, there is some slight although not significant difference in cost (the parties will be required to privately fund the report and meet one half of the cost each and the total cost of the report will be in the vicinity of $11,000 - $12,000 irrespective of which expert completes it).
The only evidence before the Court regarding the relative qualifications and experience of each of the proposed report writers is that of the Independent Children’s Lawyer. I accept that she has spoken with each, obtained their resumes and summaries of qualifications and experience and is satisfied that each is perfectly capable of addressing each of the issues relevant to the proceedings including matters pertaining to the diagnosis of autism-spectrum disorder.
The objection by Ms Carling (and thus the alternate proposal) would appear to be based on two issues (as set out in written submissions) being:
a)Dr M is available to prepare the report slightly earlier (and as to which I have no regard as the tailoring of the selection of an expert to the issues involved in a case is the relevant concern rather than their mere availability); and
b)It is a matter of “…personal preference from past experience”. It is not urged upon me that there is anything that arises from this statement beyond mere preference and thus no suggestion of imputed bias, prejudice, conflict or inadequacy.
There being nothing to differentiate or distinguish between the two experts I am satisfied that the course that should be adopted is to appoint the expert nominated by the Independent Children’s Lawyer.
Dr B is not opposed but purely a preference expressed. Accordingly and having regard to the level of acrimony, hostility and apparent distrust between the parties which has been raised as part of the conduct of the proceedings today and particularly having regard to the broadening ambit of dispute (which I will explain briefly) this would appear the course that will best meet the objects and principles of Division 12A.
At this point the application made and the Orders sought by each party are of some significance.
The application by Ms Jermyn (the Applicant), as regards final Orders, seeks:
That the Applicant have leave to amend this application in relation time spent between the children and the Respondent following the release of the Family Report.
It is germane that on an interim basis it had been proposed by Ms Jermyn that Ms Carling would have no time or communication with either of the children. The interim Orders in force provide for a restoration of the equal shared time arrangement.
The Respondent, in her Response, seeks on a final basis
Final Orders were made on 4 August 2009 and a variation on an interim basis will be sought for Orders 2 and 3. Further amendments to vary the Orders made 4 August 2009 will be filed in due course.
On an interim basis the Respondent had proposed a restoration of the equal shared time arrangement.
The Court is not assisted in any fashion by the Orders proposed on a final basis by each of the Applicant and the Respondent. Indeed it is impossible for the Court to be satisfied that due process is afforded to either parent at this time as neither parent could possibly ascertain or divine from that with which they have been served the relief which the other is seeking. The Court is similarly left in the dark.
One of the difficulties that has arisen in the matter (and which necessitated an adjournment on 22 June 2012) is the difficulty in ascertaining the issues in dispute between these parties. As a consequence of that difficulty it is impossible to determine the length of hearing that will be required as the justiciable issues are simply not known and thus the evidence that will be required to determine such issues cannot be ascertained.
The principles for the conduct of child-related proceedings as set out in s.69ZN provide as follows:
Principle 1
(3) The first principle is that the court is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.
Principle 2
(4) The second principle is that the court is to actively direct, control and manage the conduct of the proceedings.
Principle 3
(5) The third principle is that the proceedings are to be conducted in a way that will safeguard:
(a) the child concerned from being subjected to, or exposed to, abuse, neglect or family violence; and
(b) the parties to the proceedings against family violence.
Principle 4
(6) The fourth principle is that the proceedings are, as far as possible, to be conducted in a way that will promote cooperative and child‑focused parenting by the parties.
Principle 5
(7) The fifth principle is that the proceedings are to be conducted without undue delay and with as little formality, and legal technicality and form, as possible.
On the present state of the matter it would appear that the parties are fixed on obtaining an expert report, producing forensic evidence, and then determining the course of action that they, as parents, propose to advance the matter to conclusion. This would appear clearly at odds with that which flows from the High Court’s decision in U & U (2002) 211 CLR 238.
The Court cannot ascertain the position advanced by each party as best meeting the child’s needs and thus, by reference to Full Court authorities such as Goode & Goode (2006) FLC 93-286 and Marvel [2010] FamCAFC 101, it is difficult for any appropriate assessment to be made as to the parents’ attitudes and the like.
The difficulties that are presented to the Court by the lack of clarity of relief and the manner in which the proceedings are presently conducted are such that the Court cannot meet its fundamental, mandated obligations pursuant to the principles for the conduct of child related proceedings. It is difficult to apprehend how the Court can consider the needs of the child and the impact of the conduct of the proceedings when the Court is not even in a position to determine what relief each party proposes will best meet the children’s needs.
Similarly, it is difficult for the Court to actively direct control and manage the conduct of these proceedings when the parties are not in a position to advise the Court of the Orders sought by them. It is on this basis that the parties will need to produce (and further Orders have been made to guide same) clear evidence that:
a)They have attended Family Dispute Resolution or have at least attended upon a Family Dispute Resolution Practitioner for the purpose of assessment of suitability and a determination in that regard having been made;
b)They have attended family counselling so that the requirements of s.65F can be met. Clearly the level of cooperative parenting existing at this time is limited if present at all;
c)The parties will need to clearly set out the Orders which they propose (and they have, at this point, been given the accommodation of the Part 15 report being Ordered and the matter adjourned to a time subsequent to its anticipated release so that if each, as their presently framed applications would propose, require that input before formulating a position then such will be available to them);
d)Clearly apprehending what issues need to be determined to enable a conclusion of the proceedings and what evidence (including witnesses to be called) will be needed to address those issues.
The position adopted by each party regarding the relief sought by them also creates significant difficulties for the Court in the application of the general duties set out in s.69ZQ. It is, again, difficult to ascertain how the Court can decide what issues require full investigation and hearing when the parties are not in a position to identify them nor, indeed, the relief which they seek.
The above difficulties have also given rise to a false expectation by the parties that these proceedings would be listed for hearing from today’s event. This had arisen on the basis that the parties had been advised, on the last occasion, that if the matter could be contained within two days (which at the commencement of that day both parties and the Independent Children’s Lawyer had agreed would be likely) that hearing dates could be allocated in November 2012 and allocated at the same time as making other trial directions including the ordering of an expert report (notwithstanding this being contrary to the Court’s usual practice). However, when the matter returned before the Court later that day and the exercise of trial directions was embarked upon it quickly became apparent that the matter could not be contained within two days and, indeed, there was a real issue as to whether it could, in all probability, be contained within four days. Thus the proceedings were adjourned (at cost to both the public purse and the parties) to enable those issues to be clarified. They have not, to any large extent, been so clarified.
Inclusion of person’s in report interviews
The second issue that arises regarding the experts report is the proposed inclusion of persons beyond the parties and their immediate households within interviews. Whilst certainly there are circumstances in which the involvement of “significant others” would be appropriate notwithstanding that they were not engaged in the full time care or sharing of accommodation with the children subject of the proceedings, this would not appear to be one such case.
The two persons the Respondent proposes to include in the report interviews are aunties of the children. It is suggested they should be included as their relationships with the children were, or have been, significant and those relationships were, some little time ago, terminated by the Applicant (who is related to each of those persons).
Each of the “aunties” has filed an Affidavit in the Respondent’s case. The Respondent gives evidence that she has continued, albeit on a much more limited basis, to facilitate the relationship between the children and each of the “aunties”.
The basis upon which it is sought to assess the relationship between those persons and the children and the relevance of same to the determination of issues by the Court is entirely unclear.
It is otherwise submitted that each of the “aunties”, as relatives of the Applicant (and witnesses in the Respondent’s case), are in a position to provide information of relevance and importance to the report writer. However, they have already filed Affidavits in the proceedings and it is proposed, at least at this stage, that they be called as witnesses at any Final Hearing. Accordingly, such information as they may care to share with both the Court and the report writer can be done through the provision of their Affidavits as documents filed in the proceedings.
By reference to the above and absent any further compelling submission as to the basis for their inclusion, I am not satisfied that this can or should occur and accordingly Orders can and will be made in accordance with the Independent Children’s Lawyer’s Minute as submitted requiring the appointment of Dr B and the terms of reference and directions as to appointments as contained therein.
Objection to subpoena
The subpoena addressed to Ms S seeks the production of:
All files, clinical notes, reports, correspondence, admission records, running notes or other documents relating to Ms Jermyn born 28 October 1973.
It is common ground between the parties that Ms S is a clinical psychologist with whom the Applicant has engaged and by way of referral from her General Practitioner, Dr C.
The basis of the referral, having occurred some years ago, would appear to be for the assessment and treatment of any condition (ongoing or otherwise) arising from years of abuse of the Applicant as a child and by members of her immediate family.
In dealing with this issue I have been provided with written submissions by each of the Applicant and Respondent’s legal representatives and I have read and considered same. I have also identified to the parties and their legal representatives a body of case law and academic literature which I would propose to consider and which will be set out in full below.
The bases of objection are largely related to relevance and public interest exclusion.
Relevance
Section 55 of the Commonwealth Evidence Act 1995 defines relevance as:
The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.
The bases upon which it is asserted that the material produced by Ms S (sight unseen by the Respondent) is relevant are that:
a)The Applicant suffers from a non-specified psychiatric or psychological condition;
b)The Applicant has and continues to receive treatment with respect to that condition;
c)The Applicant continues to experience symptoms as a consequence of such condition;
d)Such condition is suggested to have some impact (by reference to its symptoms and/or lack of treatment or response thereto) to the parenting capacity of the Applicant.
On the basis that interim Orders are proposed by the Respondent which would see an equal shared care arrangement (as presently exists and was, indeed, Ordered by consent in 2009 when, it would appear common ground, the Respondent was aware of any such condition or diagnosis, it arising as the sequela of childhood trauma) it is difficult to comprehend the position advanced by the Respondent.
However, it is further submitted in the Respondent’s case that the existence of any psychiatric or psychological condition or symptoms (treated or untreated) would be relevant as the Applicant is conceded as a shared carer of the children (at least at this time and subject to such evidence as may be elicited from the Part 15 report) and she would seem to seek by her Application to have the full time or primary care of the children. It is submitted that any such condition would obviate against the Applicant’s capacity to care for the children full time rather than equal time.
Thus it would appear asserted that the material sought to be produced is relevant on the bases that:
a)It is material that the Respondent requires to be able to address and meet the case that she is to answer (the Applicant seeking, at least by reference to interim Orders sought, an exclusion or significant reduction in the Respondent’s engagement with or in the care of the children);
b)There would be a significant impact on the children of any untreated disorder with active symptoms; and/or
c)Past treatment and diagnosis would be relevant to the Court expert.
In dealing with and addressing such considerations, it has been necessary to read and consider the material provided by Ms S.
That material generally comprises three separate categories of documents being:
a)Copies of handwritten notes taken, no doubt, during consultations with the Applicant;
b)Typed documents comprising progress reports from Ms S to Dr C (the referring GP), mental health plans and a report produced by Ms S for submission to the Victim’s Compensation Tribunal; and
c)Copies of correspondence between the Applicant’s legal representatives and Ms S.
The last category of documents above are clearly the subject of legal professional privilege and can and must be excluded.
As regards the above material I am not satisfied as to the relevance of all. However, to the extent that it may be further asserted that there would be relevance to all such documents (particularly as the handwritten notes would appear to form the basis of any opinion then expressed in the typed documents referred to) they would prima facie be admissible. That is, however, subject to the public interest test to which I will now turn.
Public interest test
In addressing this issue I have had regard to a number of authorities and peer reviewed articles including:
a)Bauer & Steggall [2011] FMCAfam 728 (paragraphs 26 to 61 thereof);
b)Feinster & Feinster and Anor [2006] FamCA 232;
c)Benson & Hughes (1994) FLC 92-483;
d)Sankey & Whitlam (1978) 142 CLR 1;
e)Re Bell; Ex parte Lees (1980) 146 CLR 141;
f)Hutchings & Clarke (1993) FLC 92-373;
g)Duits & Duits 2006 CanLII 14407;
h)Mellish v Martinson 1993 CanLII 1825;
i)R v JT 2005 CanLII 51120;
j)R v SLR 1991 CanLII 4532;
k)“The Psychotherapist-Patient Privilege In The Family Court: An Exemplar Of Disharmony Between Social Policy Goals, Professional Ethics, And The Current State Of The Law” by Deborah Paruch published in Eliminating Unintended Bias National Association of Children’s Counsel Manual 2011; and
l)"Balancing the Scales: The Case for the Inadmissability of Counselling Records in Sexual Assault Trials" Anne Cossins and Ruth Pilkington [1996] UNSWLawJl 13; (1996) 19(2) University of New South Wales Law Journal 222
I have had regard to a number of Australian authorities regarding public interest privilege.
In Benson & Hughes His Honour Chisholm J undertook a most thorough and useful discussion of the topic. A number of passages from Honours reasons are of particular interest and assistance. His Honour first commenced by a consideration of the special nature of parenting proceedings and the specific evidential considerations that apply and referred to the High Court’s decision in Re Bell; Ex parte Lees:
…parents are not the only persons whose interests are to be considered … "If the welfare of the child is the subject of the enquiry, there comes a point when it must override any privilege which either parent may possess as was the case”
His Honour also considered the Full Court’s decision in Hutchings & Clarke dealing with the admission of settlement negotiations (prior to the legislative privilege created by s.131 of the Evidence Act) in parenting proceedings and included the following:
…the court should be reluctant to override the privilege of parties engaged in such discussions, but as stated earlier, protection of the welfare of the child is another public interest recognised [by the Family Law Act] and declared to be the paramount consideration.....This means that the court must give priority to considerations of the welfare of the child in a situation where non-disclosure of the relevant evidence "might have the result that the child remained in conditions detrimental to his or her welfare" [emphasis added] in the words of Gibbs J cited earlier. This balancing in interests can only be performed on a case by case basis…”
Chisholm J also stated:
There is a general public interest in the proper administration of justice which is promoted by the principle that ``all relevant evidence should be adduced to the court when it makes its decision'' (Baker v. Campbell (1983) 153 CLR 52 at 66 per Gibbs CJ).
However, there are recognised exceptions to this principle. One is legal professional privilege. There are also other reasons of public policy which require the exclusion of otherwise admissible evidence. A well-known example is D v. National Society for the Prevention of Cruelty to Children [1978] AC 171, in which the House of Lords held that evidence could not be given of confidential information disclosing the identity of people who reported suspected child abuse to a child protection organisation, whose effectiveness depended on keeping secret the identity of those who made complaints of suspected child abuse. In that case Lord Hailsham said at 230 that “the categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop”. Although the confidential nature of the communication is not a separate ground of privilege, it is an important factor in considering the claim of privilege: see per Lord Cross in Alfred Crompton Amusement Machines Ltd v. Customs and Excise Commissioners (No 2) [1974] AC 405, 433.”
His Honour Justice Watts, in Feinster, conducted a thorough and erudite review of public interest decisions (including Benson & Hughes above) and the following passages are illuminating:
Public interest immunity differs from privilege as it operates for the benefit of the public interest in general and does not protect private relationships or interests.
Australian courts have confirmed that the public interest immunity doctrine requires resolution of the tension between preventing the disclosure of material which may harm national or public interest and ensuring that justice is not frustrated in individual cases by the withholding of documents:
His Honour then turned to consider recognised categories of public interest immunity:
Sankey v Whitlam Gibbs ACJ at 39 affirmed that documents subject to a claim of public interest immunity may be divided into two categories, based on either the contents of an individual document or because they belong to a class of documents. A ‘contents’ claim is concerned about whether the release of particular information will be contrary to the public interest whilst a ‘class’ claim is premised on grounds that ‘vital organisations cannot operate if certain classes of communication are divulged, irrespective of the information contained in those communications’.[1] Importantly the balancing exercise must be performed for documents in both categories.
Claims for public interest immunity can also be broadly classified into those concerned with national security and those relating to some other national interest, though more recent decisions such as R v Young [1999] NSWCCA 166 suggest a preference to narrow claims to situations involving a governmental function. However it has also been said that the categories giving rise to public interest immunity are not closed and they may be extended by analogy with a known category of public interest exception: D v National Society for the Prevention of Cruelty to Children [1978] AC 171 (NSPCC) at 230.
[1] A. Ligertwood, Australian Evidence (4th Ed), 2004, LexisNexis Butterworths, Sydney, at 385.
His Honour also referred to and had reliance upon the decision of Royal Women’s Hospital v Medical Practitioners Board [2005] VSC 225 wherein Justice Gillard held that:
…the public interest in a proper investigation using all the evidence outweighed the public interest in the Hospital maintaining a confidential relationship with its patients.
Justice Watts, within the specific context of the case before him, excluded material. However, His Honour was clear in stating:
…the ordinary psychiatrist / patient relationship does not attract public interest immunity.
Without seeking in any way to cavil with His Honour’s conclusion, I am conscious that a number of other bases for the potential exclusion or limitation of the material produced (or significant portions thereof) may exist.
In addition to the above and as these proceedings are dealt with in New South Wales I have also had regard to the provisions of the Evidence Act 1995 (NSW) (which by virtue of the provisions of the Judiciary Act 1903 apply to this Court sitting in New South Wales – see for example Goldy & Goldy (No. 2) [2011] FamCA 418).
Section 126B of the Evidence Act (NSW) provides for the exclusion of evidence of protected confidences and in the following terms:
(1) The court may direct that evidence not be adduced in a proceeding if the court finds that adducing it would disclose:
(a) a protected confidence, or
(b) the contents of a document recording a protected confidence, or
(c) protected identity information.
(2) The court may give such a direction:
(a) on its own initiative, or
(b) on the application of the protected confider or confidant concerned (whether or not either is a party).
(3) The court must give such a direction if it is satisfied that:
(a) it is likely that harm would or might be caused (whether directly or indirectly) to a protected confider if the evidence is adduced, and
(b) the nature and extent of the harm outweighs the desirability of the evidence being given.
(4) Without limiting the matters that the court may take into account for the purposes of this section, it is to take into account the following matters:
(a) the probative value of the evidence in the proceeding,
(b) the importance of the evidence in the proceeding,
(c) the nature and gravity of the relevant offence, cause of action or defence and the nature of the subject matter of the proceeding,
(d) the availability of any other evidence concerning the matters to which the protected confidence or protected identity information relates,
(e) the likely effect of adducing evidence of the protected confidence or protected identity information, including the likelihood of harm, and the nature and extent of harm that would be caused to the protected confider,
(f) the means (including any ancillary orders that may be made under section 126E) available to the court to limit the harm or extent of the harm that is likely to be caused if evidence of the protected confidence or the protected identity information is disclosed,
(g) if the proceeding is a criminal proceeding-whether the party seeking to adduce evidence of the protected confidence or protected identity information is a defendant or the prosecutor,
(h) whether the substance of the protected confidence or the protected identity information has already been disclosed by the protected confider or any other person,
(i) the public interest in preserving the confidentiality of protected confidences,
(j) the public interest in preserving the confidentiality of protected identity information.
(5) The court must state its reasons for giving or refusing to give a direction under this section.
No analogous provision is contained within the Commonwealth Evidence Act (it being limited to legal professional privilege, journalist privilege, religious confession privilege and privilege from self-incrimination).
Section 126B of the NSW Evidence Act bares some passing resemblance to the Canadian authorities set out above (which in turn consider authorities from the House of Lords and United States Supreme Court) regarding what is generally referred to as a “public interest immunity”.
The concept of confidentiality in the physician/patient relationships is not new. In an excellent article, “The Psychotherapist-Patient Privilege In The Family Court: An Exemplar Of Disharmony Between Social Policy Goals, Professional Ethics, And The Current State Of The Law”, Deborah Paruch discussed the development of such privilege and in the following terms:
Some two hundred years after the attorney client privilege was first recognized in English common law, the English courts were called upon to address the physician-patient privilege in the 1776 bigamy trial of Elizabeth, the Duchess of Kingston. (Rex v Duchess of Kingston, 20 How. St. Tr 355, 572-73 (1776) During her trial, the Duchess’ physician was called to the stand and asked whether the Duchess had told him of a prior marriage. The court refused to recognize a physician/patient privilege stating:
If a surgeon was voluntarily to reveal these secrets, to be sure he would be guilty of a breach of honour, and of great indiscretion; but, to give that information in a court of justice, which by the law of the land he is bound to do, will never be imputed to him as any indiscretion whatsoever
This decision is viewed as a critical turning point in the law of privilege because it was at this point that courts began to apply a utilitarian test to privileges, where the need for the evidence replaced ethics as the standard for recognition of privileges.
In the utilitarian approach, privileges are viewed as obstructions to the truth finding process and as fostering a disregard for the fundamental principle that “the public . . . has a right to every man’s evidence.” (United States v. Byran, 339 U.S. 323, 331 (1950))
Dean Wigmore (J. WIGMORE, EVIDENCE § 2286 , at 531) identified four requirements necessary for the recognition of a privilege:
(1) The communications must originate in a confidence that they will not be disclosed;
(2) Confidentiality must be essential to the full and satisfactory maintenance of the relationship between the parties;
(3) The relationship must be one that, in the opinion of the community, ought to be sedulously fostered; and
(4) The injury to the relationship caused by the disclosure of the communications must be greater than the benefit gained for the correct disposal of litigation.
The U.S. Supreme Court has adopted this approach to the recognition of privileges, stating that privileges should be utilized “only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth.” Elkins v United States, 364 U.S. 206, 234 (1960)
Each of the above Canadian authorities refers to and discusses and applies, within the Canadian experience, what are generally referred to as the “Wigmore criteria”. These principles are set out succinctly in paragraph 21 of the Superior Court of Justice decision in Duits in the following terms:
In a “case by case” privilege there is a prima facie assumption that the communications are not privileged and are therefore admissible. The four criteria are as follows:
a. The communications must originate in a confidence that they will not be disclosed...
b. The element of confidentiality must be essential to the full and satisfactory maintenance of the relation between the parties.
c. the relation must be one which in the opinion of the community ought to be sedulously fostered.
d. the injury that would inure to the relation by the disclosure of the communications must be greater than the benefit thereby gained for the correct disposal of litigation.
In Duits the Superior Court also opined (paragraph 24):
The Supreme Court has effectively ruled that privilege should not be a bar to justice.
The above is given some meaning and explanation within the context of that decision by the Supreme Court of British Colombia’s decision in Mellish v Martinson. After repeating the Wigmore test (referred to above) and canvassing a number of authorities, Master Joyce also reflected upon the importance of a consideration of the relevance of evidence that would otherwise be admitted as an overriding consideration of the application of all other tests and criteria.
In R v SLR, Justice Gruchy considered an extensive list of authorities applying the same tests and circumstances in which same would arise (noting that such claims for privileges, consistent with Australian legislation in 1991, were not codified but remained part of the common law). This involved a consideration of the confidential relationship between:
a)a journalist and his source (AG v Mulholland; AG V Foster [1963] 2 QB 477; (1963) 1 All ER 767);
b)a doctor and patient (R v Pain 1 WLR 67);
c)a priest and penitent (Sykes v DPP [1962] AC 528; Cook v Carol (1945) 1 R 515);
d)probation officer and client (McTaggert v McTaggert [1948] P 94);
e)a clergyman and parishioner (Henly v Henly [1955] P 202); and
f)marriage counsellor and parties (G v G [1964] 1 OR 361).
Their Honours also went on to consider the specific application of the Wigmore test in a number of other circumstances before turning to the House of Lords decision in D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589 and quoting the following:
The fact that information is being communicated by one person to another in person, however, is not of itself a sufficient ground for protecting from disclosure in a Court of law the nature of the information or the identity of the informant if either of these matters would assist the Court to ascertain facts which are relevant to an issue which it is adjudicating (Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioner (No 2)). The private promise of confidentiality must yield to the general public interest that in the administration of justice truth will out, unless by reason of the character of the information or the relationship of the recipient of the information to the informant, a more important public interest is served by protecting the information or the identity of the informant from disclosure in a Court of law.
In R v JT, His Honour Senior Justice McCartney, again after an assessment and summation of the Wigmore principles, stated the following:
Thus in this particular case the critical question is found in the fourth part of the Wigmore test ie whether the interests served by protecting the documents from disclosure outweigh the interests of getting at the truth and disposing correctly of the litigation…The vital interest of society in protecting children from abuse must, in my view, be superior to the encouragement of patients to seek therapy from psychiatrists with the assurance that their confidential communications will be protected.
Whilst clearly there is no allegation of abuse raised in these proceedings (or at least not in such manner as could possibly make these records relevant and admissible) there is some analogy to the circumstances described above. This is perhaps the crux of the matter in this circumstance.
In addition to the above I note and take some comfort from the comments of the Ontario Superior Court in R v RJS 45 CR (3rd) 161 which, again, considered the exclusion of evidence on the basis of public policy and which had considered the need to protect the children from abuse against the need to encourage confidentiality in family counselling. The Appeal Court, on that occasion, had stated:
However, in balancing benefit against injury the search for truth in the criminal process outweighs the need for family counselling at least in cases of suspected child abuse. The vital interests of society in protecting children from abuse must be superior to the encouragement of patients to seek therapy from psychiatrists with the assurance that their confidential communications will be protected.
Whilst I do not intend to suggest that these proceedings involve either a criminal determination or any issue or suggestion of abuse, I note the identification of the Appeal Court in this instance of the balance which is to be struck. One must balance the need for the best available evidence to be before the Court and the need for the parties to be afforded due process in thus knowing and accurately identifying the evidence that is to be relied upon and which they are to address against the desirability of allowing a person from pursuing, obtaining and receiving therapeutic support and benefit through privileged and confidential counselling services.
In addition to the four elements of the Wigmore test to which I have had reference (which whilst non-binding I am satisfied are a useful checklist by which to address issues of public policy exclusion of evidence) I would add a fifth element being:
5. Whether there are other means by which the evidence can be obtained and made available which would be preferable to admission of evidence that the public interest might otherwise suggest the exclusion of.
In this case Dr B, the Part 15 expert, is being specifically commissioned to address the Applicant’s mental state and comment upon same. He will need access to the diagnosis of Ms H (which he can and will obtain from the typed documents) but otherwise will obtain information directly from the parties and their witnesses and will conduct his own enquiry. Thus there are other means available and, with respect, more appropriate means.
I have also had regard to a paper by Anne Cossins and Ruth Pilkington, "Balancing the Scales: The Case for the Inadmissability of Counselling Records in Sexual Assault Trials" [1996] UNSWLawJl 13; (1996) 19(2) University of New South Wales Law Journal 222. Whilst it is appreciated that these are civil proceedings not involving such criminal issues (particularly as between the parties) I am conscious of some degree of overlap particularly as to the nature and purpose of the counselling records and the sensitive nature of material contained therein.
Within that paper, the consideration of which was disclosed to the legal representatives for the parties during the course of the matter, the authors opine:
There are serious dangers associated with the disclosure and unrestricted use of information that it is communicated by a victim of sexual assault within the context of a therapeutic relationship. Specifically the disclosure of such information raises the following issues for complainants in the sexual assault matter:
1. Infringement of privacy and confidentiality;
2. Threats to the recovery process and psychological harm;
3. Fears of retribution and safety;
4. Conflict between seeking counselling and reporting or proceeding with a case.
From a complainant’s point of view the main concerns about confidentiality and privacy relate to the perceived implications of the accused of having access to personal information about the complainant. These concerns have been recognised by L’Heureux-Dube J in R v Osolin (1994) 109 DLR (4th) 478 who observed that:
routine disclosure of medical records and unrestricted cross-examination upon disclosure threaten to function very unfairly against anyone who has undergone mental or psychiatric therapy, whatever the precipitating event or nature of the treatment, as compared to other members of the public. Such persons would be subject to an invasion of their privacy not suffered by other witnesses who are required to testify. They may have to answer to details of their personal life reflected in their records and effectively overcome a presumption, most often entirely unfounded, that their medical history is relevant to their credibility and ability to testify on the matter in issue.
The authors go on to opine:
Whilst there are no constitutional rights to privacy in Australia the concept of privacy and certain rights to privacy are enshrined under legislation such as the Privacy Act 1988 (Cth) and the Freedom of Information Act 1982 (Cth).
As observed above, no privilege is reserved for confidential communications in the Commonwealth Evidence Act but there are such provisions contained within s.126B of the NSW Evidence Act.
Further, whilst the opinions expressed above (and the comments of Her Honour) relate to criminal trials, the effect of “invasion of privacy” particularly arising from access to information and potential cross examination regarding personal matters which pre-date, not only these proceedings but the relationship between these parties, is profound. Further, there is some potential for the view, borrowed from tortious litigation, “that one takes one victim as one finds them”, is apt to the present circumstance.
The circumstances that are the subject of the therapeutic counselling provided by Ms S arose in the Applicant’s childhood and thus have followed her through life. They have been present and apparent at the commencement of and throughout the relationship between the Applicant and the Respondent. Thus, to the extent that it is suggested that such treatment is relevant, it must surely be upon the basis of any symptoms present and demonstrated during the relationship or since separation. Thus a detailed discussion by the Applicant, with her therapist, of the circumstances of her childhood trauma would, prima facie, appear irrelevant (save to the extent that it gives rise to a present diagnosis or symptoms) and an unnecessary, unwarranted and disproportionate intrusion within her privacy.
I am also concerned, particularly having regard to the above and the sensitive nature of the issues contained within the counselling notes, that there would be a lack of due process contained within the proceedings, as regards the Applicant, if such access were granted in light of the distress that would be occasioned and potentially impede the Applicant’s focus and concentration. The apprehension of embarrassment and intrusion into her privacy which would follow from the release of such materials into the public domain is vast and would, of itself, potentially prejudice any perception let alone reality of a fair trial which could flow to the Applicant.
These concerns are, to some extent, potentially at odds with further considerations of the Superior Court of Canada in M. (A.) v. Ryan [1997] 1 S.C.R. 157 referred to above, and in particular at paragraph 19 under the heading general principles wherein it was stated:
The common law principles underlying the recognition of privilege from disclosure are simply stated. They proceed from the fundamental proposition that everyone owes a general duty to give evidence relevant to the matter before the court, so that the truth may be ascertained. To this fundamental duty, the law permits certain exceptions, known as privileges, where it can be shown that they are required by a “public good transcending the normally predominant principle of utilizing all rational means for ascertaining truth”: Trammel v. United States, 445 U.S. 40 (1980), at p. 50.
Whilst certainly there is a clear obligation upon litigants before this Court to ensure that full, proper and frank disclosure is made by them of all matters or relevance this, in my mind, having regard to the contents of materials produced by Ms S, is confined to a disclosure as to treatment having been sought, any diagnosis offered, treatment undertaken, prognosis for the future, present symptoms and medication regime. All of the above is readily available and apparent (and thus disclosed) through the typed documents which are to be released. Such material is not apparent from the notes maintained by Ms S which are, after all, a reportage of that received by Ms S and thus forming the basis of any diagnosis or prognosis or treatment regime which Ms S then reports in the typed documents. I am not satisfied that the introduction of that material, relating as it does to a discussion of events regarding childhood trauma, would serve any forensic purpose.
The release of the typed documents will, in my mind, more than adequately suffice to:
a)Discharge the Applicant’s duty of disclosure;
b)Place all relevant material before the Court upon which enquiry can be conducted (particularly noting that a Part 15 single expert is to be appointed with the consent of both parties and the Independent Children’s Lawyer); and
c)Allow the Respondent to know fully the facts and circumstances that she must meet and consider in the conduct of her case.
I am also guided in this view by the comment (further to the above) of Master Joyce in Mellish v Martinson and as follows:
In the present case there is a very great public interest, in my view, in encouraging victims of abuse to seek appropriate counselling to deal with the far reaching and serious consequences of abuse. Confidentiality is vital to such counselling. Consequently, I am satisfied that the public interest will be served if that confidentiality is fostered for the greatest degree possible whilst satisfying the interest of justice in enabling a litigant to make full and fair answer in any case. This is not a case where the central issue in the law suit is the same as that with which the communications are concerned.
It is to be noted that Master Joyce in Mellish v Martinson was dealing with a claim for access to information in the nature of confidential counselling records by a victim of abuse of sexual assault and such documents being sought to be produced in proceedings unrelated thereto. Master Joyce went on to conclude:
In my opinion the plaintiff ought not to be further victimised by the disclosure of these highly confidential documents just because she had the misfortune to be injured by the defendant’s negligence.
Whilst clearly the symptoms for which the Applicant has sought treatment with Ms S has not arisen due to any action or inaction by the Respondent (but indeed by others prior to the Applicant’s relationship with the Respondent) I am satisfied that the words of Master Joyce are appropriate. To release the confidential records which detail such events in the past of the Applicant and which continue to psychologically plague her (understandably so) and give rise to a variety of sequala would be to victimise her and inappropriately and in a fashion that would be against the public interest.
Conclusion
I also note, lest I am wrong with respect to the above determinations, that section 135 of the Evidence Act grants to the Court a general discretion to exclude evidence in the following terms:
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing; or
(c) cause or result in undue waste of time.
Section 136 grants a further general discretion to limit the use of evidence which is not excluded in its entirety and in the following terms:
The court may limit the use to be made of evidence if there is a danger that a particular use of the evidence might:
(a) be unfairly prejudicial to a party; or
(b) be misleading or confusing.
By reference to Steven Odger’s excellent and recently published 10th Edition of the “Uniform Evidence Law” and particularly paragraph 1.3.4340 thereof, a number of categories of exclusion (of expert evidence) are identified and which might also be germane to these proceedings. By reference to that paragraph and the authorities referred to therein I am satisfied that the material, again, should be excluded save for the typed reports to which I have referred and which will be released.
I am also satisfied that the above determinations (particularly as regards public interest and policy) have validity by reference to the principles for the conduct of child related proceedings set out in s.69ZN and recited above. I cannot see any fashion in which the distrust and recriminations which would arise from the release into the public domain (at least as regards to the parties to these proceedings) of such sensitive information could possibly promote cooperative and child-focused parenting or assist in “establishing” (as opposed to undermining and/or destroying) the ability of these parties to communicate and problem-solve as referred to in s.65DAA(5).
Finally, I am not satisfied that the relevance or probative value of any material contained within the notes (which I propose to suppress) could or would outweigh (by reference to the above tests particularly the (non binding) Wigmore guidelines and s.126B of the NSW Evidence Act) the harm that would follow. Specifically with respect thereto I note that I am satisfied that:
a)The probative value of the evidence that would be elicited from Ms S’s notes (noting my concerns as to their relevance being, at best, tangential) is limited;
b)The evidence of the childhood traumatic experiences of the Applicant, whilst worthy of full empathy and sympathy, is not evidence of importance in the proceedings;
c)Evidence that would be relevant to and arising from the Applicant’s consultations with and treatment by Ms S can be obtained through the admission of the material in the nature of typed documents (which I propose to release for inspection) and the Part 15 Report. That is also not to determine the admissibility of the typed reports if tender is sought to be made at any time;
d)I am satisfied that the release of information as contained within the notes would entirely breach the confidence of the Applicant and would have significant potential for impact upon her psychological and emotional health and would likely cause or potentially cause significant harm to the Applicant as a protected confider. This would be contrary to the principle set out in s.60CA that the child’s best interest is the paramount consideration, noting that the Applicant is an equal carer for the children with the Respondent;
e)I am satisfied that the means exist and are available to the Court to limit the harm or the extent of harm to the Applicant through the release of only such material as is entirely necessary and such as to disclose any diagnosis, prognosis and present treatment so that this is known and available to the Court, the report writer and the Respondent. Further, as above, I am satisfied that the means exist to commission further and better evidence in the form of the Part 15 report Ordered by me today and that the Part 15 report is the “best evidence”;
f)The substance of the protected confidence (being the diagnosis, prognosis and present treatment plans) can be disclosed through the limited release of information which I propose and thus the exclusion and suppression of the balance of material, in the nature of handwritten notes, would appear entirely appropriate;
g)The public interest in preserving the confidentiality of the victims of violence and abuse who are seeking appropriate therapeutic assistance to enable them to rebuild their lives following the damage inflicted upon them is such as to outweigh any benefit in the release of further information; and
h)Finally, the public interest in preserving the confidentiality of persons disclosing such information and not then having such information made available in the context of proceedings of this nature (in which the live issues are not directly connected with nor relevant to a victim’s childhood trauma) is such that I am, again, satisfied that its suppression is entirely appropriate, warranted and necessary.
I am satisfied that the material which can and should be released and made available for inspection is that which comprises the typed documents in the nature of reports and mental health plans. This is on the basis that the material that is disclosed therein (as to diagnosis, present treatment and prognosis) would be relevant and would be of assistance and guidance to the Court’s expert and similarly relevant and of some importance to the Court in the determination of judiciable issues at trial (if the matter cannot be resolved). Further, the Applicant has an obligation to disclose that information.
Further, I am satisfied that the above documents have, to some extent, already been made available within the public arena and particularly so in the case of the report produced by Ms S for submission to the Victim’s Compensation Tribunal. Whilst I accept that such litigation is unrelated to the present I note that it has arisen in circumstances wherein:
a)That document has been produced and brought into existence for the purpose of litigation (and I am satisfied, for present purposes, that it would not represent an exception to the admission of that document as a business record pursuant to s.69 of the Evidence Act);
b)The document has been submitted to a public tribunal;
c)Most importantly, that document has been submitted to a public tribunal with the full knowledge and consent (and thus waiver of privilege) by Ms Jermyn.
As regards the notes, I am not satisfied that these can, are or should be released. They are documents with a significant potential, if released, to create embarrassment and distress to the Applicant and thus such documents, to the extent that they have apparent albeit tangential relevance to the proceedings can and should be excluded.
I certify that the preceding one hundred and four (104) paragraphs are a true copy of the reasons for judgment of Harman FM
Date: 8 August 2012
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