KIRBY & KIRBY
[2014] FCCA 2332
•26 August 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| KIRBY & KIRBY | [2014] FCCA 2332 |
| Catchwords: FAMILY LAW – Practice and procedure – objection to a subpoena – relevance – physician-patient confidentiality – consideration of broader public interest. |
| Legislation: Family Law Act 1975, ss.60B, 60CA, 60CC, 67ZBA(2), 69ZW Federal Circuit Court Rules 2001, r.15A.14(2) |
| Amador & Amador (2009) 43 Fam LR 268 Articles cited: |
| Applicant: | MR KIRBY |
| Respondent: | MS KIRBY |
| File Number: | PAC 3341 of 2014 |
| Judgment of: | Judge Harman |
| Hearing date: | 26 August 2014 |
| Date of Last Submission: | 26 August 2014 |
| Delivered at: | Parramatta |
| Reasons delivered on: | 26 August 2014 |
REPRESENTATION
| Solicitors for the Applicant: | Mr Duncombe of Dignan & Hanrahan Solicitors & Attorneys |
| Solicitors for the Respondent: | Mr Kallouche of Ck Lawyers |
ORDERS
Grant leave to the parties and their legal representatives to inspect material produced on subpoena by:
(a)Department of Family And Community Services;
(b)(omitted) Medical Centre; and
(c)(omitted) Medical Centre.
IT IS NOTED that publication of this judgment under the pseudonym Kirby & Kirby is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 3341 of 2014
| MR KIRBY |
Applicant
And
| MS KIRBY |
Respondent
REASONS FOR JUDGMENT
The proceedings
These are proceedings relating to both parenting and property adjustment issues.
The parties to the proceedings are Mr Kirby, the husband and Applicant, and Ms Kirby the wife and Respondent.
The parties were married (omitted) 1998 and separated on a final basis on either the first or 18th of April 2014 (the earlier date being alleged by Ms Kirby and the latter by Mr Kirby). There is some issue as to the number of prior separations that have occurred and their duration, although, at least one prior separation is commonly acknowledged by both parties.
The proceedings come before the Court today by way of the listing of the first return date.
Issue for determination
At the first return date of these proceedings the matter would not ordinarily be listed for any form of interim or interlocutory hearing in the absence of a plea for such relief contained in either the Application or Response as filed. Whilst parenting relief is sought by the husband (and responded to by the wife) the Court is not moved to deal with or determine any such application, as agreement has been reached between the parties and a Minute of Orders tendered and marked Exhibit A.
Those interim orders, made with the consent of the parties, provide that the three children of the relationship, namely, Y born (omitted) 2005, Z born (omitted) 2006 and X born (omitted) 2012, shall live with their mother and shall spend time with their father each alternate weekend from 9am Saturday until 4pm Sunday, each Thursday from 5pm until 7:30pm and for such other periods as may be agreed between the parties from time to time.
The issue which requires determination on this occasion is an application by the husband’s counsel for access to inspect material produced on subpoena by two general practice medical centres and relating to medical records of the wife. Objection is raised and a Notice of Objection has been filed by the wife.
Proceedings and material considered
In the case of Mr Kirby, I have read and considered each of the following documents:
a)His Initiating Application filed 17 July 2014;
b)His Affidavit sworn or affirmed 15 July 2014 and filed 17 July 2014;
c)A subpoena addressed to the Proper Officer (omitted) Medical Centre; and
d)A subpoena addressed to the Proper Officer (omitted) Medical Centre,
In addition to the above documents I have also had the benefit of brief oral submissions by counsel for the husband.
In Ms Kirby’s case, I have read and considered each of the following documents:
a)Her Response filed 22 August 2014;
b)Her Affidavit sworn 21 August 2014 and filed 22 August 2014;
c)A Notice of Objection with respect to the subpoena addressed to the (omitted) Medical Centre; and
d)A Notice of Objection with respect to a subpoena addressed to the (omitted) Medical Centre.
In addition to the above I have also received brief oral submissions from counsel for the wife.
During submissions by the parties and each of them I have made some reference to recent and relevant publications regarding the issue in dispute between them on this occasion and, in particular, an article ‘The erosion of psychiatrist-patient confidentiality by subpoenas’ published in the Journal of Australasian Psychiatry.[1]
[1] Levy, J, Galambos, G and Skarbek, Y, ‘The erosion of psychiatrist-patient confidentiality by subpoenas’ Journal of Australasian Psychiatry, vol 22, no 4, 2014, 332-336.
The subpoena
The subpoena addressed to the (omitted) and (omitted) Medical Centres seek documents in identical terms, namely:
“All files, records, reports, notes, clinical notes and the like in respect of Ms Kirby born (omitted) 1975”.
The objection to each subpoena is also in the same terms and comprising three grounds specified as:
“1) Fishing expedition
2) The requested documents are not relevant
3) The documents have no relevant forensic purpose”
Material has been produced by each of the medical centres. Records are held by the Court in purported compliance with the subpoena served upon each. No objection has been raised by the recipient of each subpoena.
A Notice of Request to Inspect has been lodged with respect to each of the subpoena by counsel for the Applicant. Administrative access has not been granted and cannot, consistent with the Federal Circuit Court Rules 2001, be granted in light of the objection that has been lodged.
Relevance
The fundamental rule of evidence (both in common law and under the uniform evidence code (comprising the both the Commonwealth and New South Wales Evidence Acts)) is that evidence must be relevant.
Section 55 of the Evidence Act 1995 (Cth) 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 each of the medical centres, albeit those records are yet to be inspected by the Respondent’s counsel and thus the contents of those records is not known, is relevant are that:
a)The wife’s present health and functioning is not known to the husband;
b)The capacity of the wife to care for the children is a significant and relevant issue in the proceedings (involving, as the proceedings do, an issue with respect to parenting); and
c)Allegations raised by the wife in the proceedings, particularly as regards the husband’s suggested “abuse” and “violence” towards the wife (which allegations are denied in their totality by the husband) are suggested to give relevance to any material as might be produced by the wife’s treating doctors both as regards possible corroboration of concerns raised by the husband as to the wife’s functioning and as regards potential corroboration or absence thereof (such as through prior inconsistent statements or a failure to make prior report).
For the wife’s part her counsel submits that the material is not and could not be relevant (and thus serves no forensic purpose) as:
a)The husband proposes that the parents have equal shared parental responsibility and that the children spend equal time with each parent. It is thus argued that if concerns were held with respect to the wife’s health and/or capacity to care for the children at all that such proposals, both as to equal shared parental responsibility and equal time, would not be forthcoming;
b)The wife’s past and present health conditions are well known to the husband; and
c)Any diagnosis with respect to the wife (whether with respect to physiological or psychological conditions) is not, by and of itself, relevant but rather any symptomology presently experienced by the wife and evidence of which symptomology is absent and not alleged by the husband.
Orders proposed by the parties regarding parenting
The husband seeks relief in the following terms:
a)That the parties have equal shared parental responsibility for the children.
b)That the children live with the parties on a week about basis.
For her part the wife seeks relief in the following terms:
a)That the mother have sole parental responsibility for the children.
b)That the children live with the mother.
c)That the children spend time with the father from 2pm until 4pm each Saturday, to be supervised by the (omitted) Catholic Care Contact Centre.
The above orders sought by the wife are in the same terms on both an interim and final basis.
Each party otherwise seeks a number of orders addressing matters such as non-denigration, provision of information and facilitation of information being obtained and machinery orders to give effect to that which is sought by them on a substantive basis.
Leaving aside the inherent difficulties with the orders sought by the wife (seeking orders on a perpetually supervised basis), there is clearly a significant dispute between the parents.
To gain some insight into the parties’ proposals and the issues that each have raised as regards the relevance of the subpoena served on the two medical centres it is instructive to briefly consider the parties’ evidence
The husband deposes as follows:
a)At paragraph 12 of his Affidavit he states; “Approximately six (6) years ago I became aware that the Respondent wife was suffering from a depressive condition.”
b)At paragraph 13 the husband deposes to events which are alleged to have occurred during a four-week holiday by the parties with the two elder children (the youngest not then having been born) to (country omitted) wherein it was suggested that the wife had held a knife to her own throat and threatened to kill herself saying words to the effect “Leave me in peace. I’m going to kill myself”. The husband goes on to depose (at paragraph 14) that:
The Respondent wife disclosed to me for the first time that she was taking antidepressant medication. She did not provide particulars as to the precise nature of the same [sic].
c)The husband then gives some evidence of the wife attending upon “a counsellor”. The wife denies this and denies the husband’s knowledge of any treatment that she sought or received. The wife for her part states that following the stillbirth of a child on (omitted) 2008 (at 20 weeks of pregnancy) that:
… I experienced feelings of loss and grief and as a result was prescribed antidepressant medication by my general practitioner the short period of approximately 9 months, in order to help me deal with my loss (at paragraph 45 the wife’s Affidavit).
The wife specifically denies any advice by her to the husband that she was obtaining or seeking to obtain any form of counselling. The wife suggests that this was on the basis that she was “… scared of the reaction of Mr Kirby and did not want to be subjected to judgement and ridicule” (paragraph 54 of the wife’s Affidavit). The husband suggests that following the birth of the youngest child, X that:
… the mental health of the Respondent wife deteriorated. The Respondent wife commenced to engaged [sic] in aggressive and abusive behaviour directed towards myself and the children. Such behaviour included her yelling and screaming at us and smashing objects in the residence such as plates, cups and the like (at paragraph 19 of the husband’s Affidavit).
The husband also asserts that following the birth of the youngest child, X that the husband would return to the residence after work to find, “… the Respondent wife screaming and yelling at the children. She [the wife] would also do so on the weekends when I was present” (paragraph 20 of the husband’s Affidavit).
On the basis of the above matters and as a consequence of suggestions by the husband that reports were made to the Department of Family and Community Services by a number of people, including neighbours, the Department of Family and Community Services is suggested to have attended on a number of occasions and to have spoken with the wife. The husband asserts that he has not been able to obtain any information from departmental officers, although, subpoena has now been issued in the proceedings for the production of material (no objection is raised with respect to the release of that information). These matters are discussed in paragraphs 21 – 23 inclusive of the husband’s Affidavit.
The husband goes on to offer opinion (not otherwise admissible) that the difficulties that he perceives in his practising a relationship with the children post separation (as to which there is no issue that it has been extremely limited) are impacted by the wife’s general health and functioning. The husband denies any specific knowledge of the wife’s past treatment, present treatment or any diagnosis offered. However, he prognosticators a connection between the wife’s emotional or psychological health and functioning and her attitude towards him both as to the children’s time and relationship with him and the allegations that are raised by her in the proceedings.
The wife concedes that the husband has little if any knowledge of her past or present medical treatment. At paragraph 55 of her Affidavit she states:
… I have never informed Mr Kirby or provided any details in relation to any medication being taken by myself over the years. Mr Kirby has never been supportive of me during any period of grief and loss I have endured.
The wife otherwise goes on to give evidence as to a number of allegations of family violence (notwithstanding that no Form 4 has been filed in the proceedings as is mandated by section 67ZBA(2) of the Family Law Act 1975). With respect to these allegations they are denied by the husband in their totality. The husband asserts, on what basis it is unclear, that the wife has a propensity for exaggeration and manufacture of allegations and that these “may” be a function of any medical, psychological, psychiatric or emotional disturbance which she experiences and thus his desire to obtain information with respect to the wife’s medical history and present medical treatment.
The wife’s health and the husband’s knowledge of the wife’s health
The husband’s evidence with respect to the wife’s emotional, psychological or mental health is limited and is largely as set out in the above evidence. The husband does, however, give some indication of issues which he suggests are of some concern to him regarding the wife’s past functioning.
Whilst the husband deposes that his knowledge of the wife’s health has been limited, the wife puts the issue in more stark terms. The wife makes clear, through her evidence as addressed above, that the husband has limited knowledge of her past health treatment and little if any knowledge of any past diagnosis or pharmacological intervention.
The wife submits that evidence with respect to her health is irrelevant and particularly in light of the relief sought by the husband namely equal shared care.
On the basis of the husband’s proposals for the children’s future care there is, on its face, some weight to that submitted on the wife’s behalf. On the wife’s case, it is submitted, the husband must accept and concede the wife’s capacity to provide for the children and to meet their care needs, as he would not otherwise propose shared care or equal shared parental responsibility.
The husband submits that there are two bases of relevance, namely:
a)The husband, whilst proposing equal shared parental responsibility and equal shared time, seeks to make some further enquiry, through the issue of subpoena (and/or through a request for further information from the wife) as to the wife’s health and thus capacity to participate in a shared care and shared parental responsibility arrangement; and
b)The husband seeks to rebut and explore such evidence, if any, as may assist in rebuttal of the wife’s allegations with respect to the husband, wherein the wife alleges that the husband has engaged in a course of ridicule, emotional abuse and physical abuse throughout the relationship. In this regard the husband submits that the orders proposed by the wife lend some support to the husband’s position and the relevance of the evidence which might be gathered through the issue of subpoena to the wife’s treating general practitioners.
In dealing with the first of the above two propositions, I am satisfied that the husband would be entitled to seek and obtain information of the nature that is likely to be disclosed by the general practitioner’s records produced on subpoena and for the purpose of ensuring that he, as a parent (little known in the conduct of his litigation before the Court), has all relevant, necessary and up-to-date information available and which he would need so as to be in a position to make an informed choice.
That informed choice may well be of some assistance (and potentially some detriment) in procuring a consensual resolution of the matter. In any event that information would be necessary to enable the husband to determine whether the relief as formulated by him remains appropriate. This is particularly so, in light of the wife’s concession that the husband’s knowledge is, including through her own actions, less than complete. Thus, I am satisfied that as regards this issue the material sought to be produced in response to the two subpoena as issued is relevant.
The wife’s allegations of family violence and corroboration
As regards the second limb of the husband’s position as advanced above, I am conscious that the full court has, in authorities such as Amador & Amador (2009) 43 Fam LR 268 (and as discussed in the Family Violence Best Practice Principles Edition 3.1 – April 2013) made clear that:
Where domestic violence occurs in a family it frequently occurs in circumstances where there are no witnesses other than the parties to the marriage, and possibly their children. We cannot accept that a court could never make a positive finding that such violence occurred without there being corroborative evidence from a third party or a document or an admission.
The victims of domestic violence do not have to complain to the authorities or subject themselves to medical examinations, which may provide corroborative evidence of some fact, to have their evidence of assault accepted
In light of the above one would be loath to attack or dismiss allegations of family violence purely for want of corroborative evidence. However, in these proceedings the wife makes clear allegation that she has attended upon her general practitioner and received assistance with respect to anxiety and depression and has done so for some years as a consequence of the husband’s behaviours towards her and as reported by her to her general practitioner. In light of that evidence by the wife there would be a near irresistible Jones & Dunkel (1959) 101 CLR 298 inference to be drawn in the event that the wife did not seek to produce such evidence.
As was remarked by Justice Ipp in an article ‘Lawyers’ Duties to the Court’ 1998 (114) Law Quarterly Review 63 (at page 65), the duties owed by a lawyer to the Court include:
A general duty to conduct cases efficiently and expeditiously;
A general duty not to abuse the courts process;
A general duty of disclosure road to the court; and,
A general duty not to interfere with the administration of justice.
Similar if not identical duties apply to the parties in litigation before this Court including, both through the Court’s jurisprudence, common law and the Court’s rules, a duty of full and frank disclosure of all matters within a party’s knowledge and which are or may be relevant to the determination which the Court is to make.
Having regard to the above comments, I am satisfied that the efficiency and expedition of the Court’s process (and the integrity of that process including processes which may occur outside of the Court, such as family counselling and family dispute resolution, the contents of which are privileged, confidential and inadmissible) would be aided by the production of information of the nature likely to be produced in response to the subpoena issued by the husband.
In light of the above finding and the finding as to the relevance or likely relevance of that which is to be produced, I am satisfied that the issue of subpoena at this stage in the proceedings and for the production of documents of the classes and nature of those likely to be produced is appropriate and not abusive of the Court’s processes.
There is certainly the potential that the material produced by the wife’s treating medical practitioners would be invasive of the wife’s privacy. However, on the basis that the material is relevant and potentially of fundamental significance to that which is sought (including, importantly, on the wife’s own case), I am satisfied that any conflict between the wife’s right to privacy in her dealings with her general practitioner and her duty of full and frank disclosure to enable a full and proper assessment to be made (ideally by the parties but, if not, by the Court) of the children’s best interests, outweighs such a right to privacy.
A litigant’s right to privacy should not be readily or too hastily subverted. However, all such “rights” must be subservient to the best interests of the child as the paramount consideration. Further, any such “right” must be established by legislation or founded upon a common law privilege.
In light of the factual context of these proceedings there are two significant issues that the records sought to be produced would go to, namely:
a)The establishment by the wife or the rebuttal by the husband of serious and significant allegations of coercive controlling family violence; and,
b)The determination of serious and significant issues regarding the children’s best interests and, in particular, issues relating to the children’s future care arrangements both practically and physically and as regards decision-making. The matters that are raised, whether from the husband’s perspective or those of the wife, would speak directly to the application or non-application and, if applicable, rebuttal of the presumption of equal shared parental responsibility as the records produced would have the potential to corroborate and thus assist in establishing allegations of family violence or would go towards “reasonable practicality” and thus best interests of an order for equal shared parental responsibility.
In addressing issues relating to the privacy of the litigant, I am conscious of the principles relating to the conduct of parenting proceedings and as set out in section 69ZN of the Family Law Act 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.
The needs of the child, as regards the impact of the proceedings must, in light of section 60CA of the Act and the requirement to treat the child’s best interests as the paramount consideration (to conflate “needs” and “best interests” for one moment) are of particular significance with respect to this issue and noting the tension between:
a)The potential impact upon the wife of the disclosure of her private and personal information. This may (although the evidence does not permit any finding) extend to some impact upon her future emotional health and functioning;
b)The serious step which the Court is moved to take on the wife’s case of excluding the husband from participation in parental decision-making, at least as regards major issues for the children and to impose ongoing supervision upon his relationship with the children.
I am satisfied that the needs of the children and their best interests (to separate the two, the former being part of the latter) would weigh in favour of interference with the wife’s right to privacy as asserted and in the event that infringing upon such right to privacy as might be asserted was not already overridden by the duty of disclosure of all matters as might be relevant in the proceedings and to allow an assessment and determination of the children’s best interests.
The third principle (the need to conduct the proceedings in a manner which would best promote the children’s protection from family violence) would also support the release into the public domain (at least as regards the participants in these proceedings) of the information produced in response to the subpoena. On the wife’s case she has been the victim of serious, significant and extensive coercive and controlling family violence. Accordingly records which would have the potential, on the wife’s own evidence, to support and corroborate her evidence should be available and will be available through the production of material in response to the subpoena.
I pause to note that material has, in fact, been produced by each of the recipients thereof. The objection taken, at this time, is not to production (being an objection which the recipients of each of the subpoena have not raised) but to inspection by the husband and his attorneys. In that context additionally, I am satisfied that leave can and should be granted to inspect material, limited to the parties and their legal representatives, and noting that any further objection, such as to the tender of information as produced, will remain live.
It would appear that no request has been made by the wife or her attorneys to inspect the material that has been produced as would be the wife’s right pursuant to rule 15A.14(2) which provides, in effect, a right of first inspection and in the following terms:
If an issuing party seeks the production of a person's medical records, the person may, before the day stated in the subpoena for production, notify the Registrar in writing that he or she wants to inspect the records for the purpose of determining whether to object to the inspection or copying of the document by any other party.
The absence of such a request is regrettable. Indeed, it may well have transpired, if such a request had been made and “first inspection” had occurred that the issue could have been resolved between the attorneys, either as to its totality or partially, especially as the documents produced might well have assisted the wife in corroborating allegations made by her in the proceedings.
There is some tension between the above matters and the fourth principle, namely the requirement to conduct proceedings in a fashion that will, as far as possible, promote cooperative parenting and avoid impediment thereto. In that regard, I note that the principles guide the conduct of the proceedings generally, and whilst individual determinations, including as to evidence, impact upon the proceedings the decision to grant or refuse access by inspection to material produced on subpoena is of lesser concern than the potential information, potentially of profound significance, to be lost to either the parties, in the conduct of their proceedings or in making forensic determinations with respect thereto, or, ultimately, to the Court.
The consideration of the issue extends beyond matters relating to the wife’s potential “right” to privacy. Indeed issue would extend to the potential that the wife’s medical records, accessed in the context of these proceedings and thus, to some extent, in the public domain (at least as regards the parties) undermines the therapeutic benefit to the wife of obtaining assistance and interferes in the confidentiality of the wife’s therapeutic relationship with her treating doctor.
In the article ‘The erosion of psychiatrist-patient confidentiality by subpoenas’ (2014) it was opined that:
There currently exists, in Australia, a prolific practice of solicitors issuing subpoenas abroad scope, seeking to obtain the highly confidential psychiatric records of third parties; that is, a party whom is not the solicitors client, but rather an opposing party to the litigation or a third party, such as a relation, victim or witness… It appears to have become particularly commonplace the subpoenas to be used during family law proceedings for “fishing expeditions” to “dig up dirt” on estranged spouses. The subpoenas typically ask for the entirety of the patient’s psychiatric records…
The same authors go on to opine:
A subpoena of psychiatric records may be credible in exceptional circumstances, where there is a demonstrable risk to society and the public benefit of breaching confidentiality outweighs the clinical risks to the patient and society of doing so; however, in most other instances, subpoenas violate the confidential nature of the Dr-patient relationship. Confidentiality is instrumental to the development of therapeutic relationship that facilitates optimal psychiatric care.
In support of the above proposition, reference is then made to a number of other sources such as a paper by Robertson, M.D and Walter, G ‘Many faces of the dual-role dilemma in psychiatric ethics’ published in the Australian and New Zealand Journal of Psychiatry 2008 and the Australian Medical Association Code of Ethics 2006.
The above article importantly draws attention to a number of relevant considerations including:
… Consideration of the harm, if any, that may be caused to the patient or therapeutic relationship should access to the psychiatric records be granted.
Failing to safeguard confidentiality risks members of the public being deterred from seeking medical attention or modifying the personal information they disclosed due to fears that their privacy might be breached
The [psychiatrist]’s-patient relationship is one in which confidentiality is crucial and in which the utmost trust and confidence must be held by the patient. It is said that without complete confidentiality, therapy is unlikely to produce the results that society would want. To this extent, it is argued that the relationship may be distinguished from the position-patient one, since confidentiality is of the very essence of the relationship the psychiatrist, whereas with the position it is merely one of its aspects.
The above article then undertakes a discussion of the principles under the Evidence Act 1995 (NSW) (which importantly includes a privilege with respect to confidential relationships within section 126B) and a discussion of relevant principles in commonwealth law.
Section 126B of the Evidence Act (NSW)
To the extent that section 126B of the Evidence Act 1995 (NSW) might be suggested to apply to these proceedings and thus potentially providing a basis for the exclusion of evidence (and thus an order to access records which might ultimately be the subject of tender), I am satisfied that the “evidence” contained in the records produced to the Court by the wife’s treating general practitioners and thus access to inspect that material would obviate against either exclusion of that evidence or refusal of leave for its inspection.
The relevant sections of the Evidence Act 1995 (NSW) are 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.
For the purposes of section 126B the term “harm” is defined by section 126A(1) to include “actual physical bodily harm, financial loss, stressful shock, damage to reputation or emotional or psychological harm (such as shame, humiliation or fear)”. The onus rests upon the wife to establish the above. No evidence is led nor any submission put which would support such a finding.
In the absence of the above evidence, I could not be satisfied that subsection (3) applies such as to require the exclusion of evidence or, in this instance, refusal of leave to inspect material which might ultimately be the subject of tender and introduction into evidence.
As regards the discretionary power to exclude the evidence (or refuse leave) I am satisfied, having regard to the matters in subsection (4) that:
a)The probative value of the evidence is high. Any material relating to a protected confidence between the wife and her general practitioner and comprising a disclosure by the wife of family violence would be admissible as an admission;
b)As the evidence would go to issues of family violence which are central and fundamental to the determination of the child’s best interests as the paramount consideration in the proceedings, the evidence is of great importance;
c)The proceedings deal with the best interests of children. It is difficult to comprehend proceedings of a nature and gravity more serious and significant;
d)On the wife’s own evidence the material contained within the medical records would, particularly having regard to paragraph 52 of the wife’s Affidavit, corroborate (or fail to corroborate) the wife’s allegations of significant coercive controlling family violence;
e)No evidence as to likely harm to the wife or her therapeutic relationship with her general practitioner is led;
f)The substance of the protected confidences relate to allegations of family violence, the impact of same upon the wife, and the corroboration of those allegations (or their rebuttal);
g)Whilst I accept that a “public interest” may exist in preserving the confidentiality of such protected confidences (perhaps all the more so if the records related to a psychiatrist-patient relationship rather than clinician-patient relationship), such public interest, to the extent that it can be discerned by reference to established law, is outweighed, in this case, by the desirability of material which could clearly corroborate or refute an allegation of family violence being available to the Court and thus being of significant assistance in addressing both the conduct of the proceedings and the determination of the child’s best interests.
Broader public interest arguments
In a previous decision of Jermyn & Carling [2012] FMCAfam 814, I had referred to other literature and Australian, English, Canadian and United States case law regarding the same topic the relevant portion of which provides:
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.
I would, respectfully, adopt the above remarks as being particularly germane to this case.
Similarly, the House of Lords in D v National Society for the Prevention of Cruelty to Children [1977] 1 All ER 589 stated:
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 addition to the above I note and take some comfort from the comments of the Ontario Superior Court in R. v S (RJ) (1985) 45 C.R. (3d) 161 which, again, considered the exclusion of evidence on the basis of public policy and which had considered the need to protect 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.
In a further decision of a Canadian Superior Court, M. (A.) v. Ryan [1997] 1 S.C.R. 157 under the heading “general principles” the following statement of principle can be found:
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 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 and 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 pursuing, obtaining and receiving therapeutic support and benefit through privileged and confidential counselling services.
I have not considered the above tests of “public interest immunity” to suggest that they are binding authority within Australia. They have been considered as they are reflective of the jurisprudence of like Commonwealth jurisdictions. Each of the above overseas authorities provides a broader test a public policy immunity than would appear settled law within Australia. However even on the bases of these broader tests the material the subject of the present controversy should clearly be the subject of an order for inspection.
What is clear and apparent with respect to the discussion by the above authors and the facts and circumstances of this case is:
a)The relationship addressed by the notes produced in response to subpoena is a physician-patient relationship rather than a psychiatrist-patient relationship. Thus some significant lessening of the arguments raised by the learned authors would arise, although not to the extent as to ameliorate against any consideration of the issue. That is not to suggest that a “therapeutic” relationship could not exist between a physician, as opposed to a psychiatrist, and a patient. However the issue does not arise in this case; and,
b)The wife asserts, in her own evidence, that the basis or a significant basis of her approaching her general practitioners for assistance was the behaviour that she alleges she experienced at the hands of the husband; and,
c)The basis upon which the wife asserts that she had kept her attendances upon her general practitioners and/or counsellors “confidential” or “secret” has now passed. In this regard the wife asserts at paragraphs 54 and 55 of her Affidavit that she had not informed the husband of either her counselling or medication to avoid any reaction by the husband and to avoid being subjected to “judgement and ridicule” or lack of support. The separation of the parties would, to a large extent, obviate against those concerns remaining relevant other than to the extent that the wife asserts that she fears that the husband would now use her “mental health” against her.
To the extent that the husband seeks an order for equal shared care and parental responsibility the wife’s concerns would appear, at least for the present, to be somewhat misplaced.
Perhaps the fulcrum of the determination arises in paragraph 52 of the wife’s Affidavit wherein she asserts that:
a)“I have at times sought counselling and assistance in particular in relation to the trauma suffered during the trip overseas to (country omitted)[when the wife alleges specific incidences of family violence], the dysfunction in the relationship between myself and [the husband], and in relation to the domestic violence suffered by me at the hands of [the husband]”.
b)This evidence by the wife would establish, by and of itself, a basis upon which the material sought to be produced on subpoena would be not only highly relevant but material which the wife would be obliged to disclose and produce to the Court in support and in corroboration of her allegations of family violence. As already indicated above a failure by the wife to do so, in circumstances where she has clearly identified a source of corroborative evidence (leaving aside that opined by the full court in Amador & Amador (2009)) would give rise to an irresistible Jones & Dunkel (1959) inference.
Family violence is fundamental to all that is done by the Court. Family violence, before proceedings are commenced, informs the determination of whether family dispute resolution is “appropriate” and/or whether an exemption from attendance at family dispute resolution should be granted.
Once proceedings are commenced, family violence is raised as an issue with significance throughout the sections of the legislation which inform the Court’s determination of the child’s best interests commencing with the objects and principles in section 60B, as the first and prioritised primary consideration (see sections 60CC(2) and (2A)), and in the obligations imposed upon the Court by section 67ZBA.
It is difficult to imagine evidence which would be more relevant and directly connected with both the best interests of the children the subject of these proceedings and the position advanced by the wife in these proceedings seeking, as the wife does, an order for sole parental responsibility and the imposition of ongoing, perpetual supervision of the husband’s time with the children, by reference to his alleged family violence. In those circumstances the wife’s position in instructing her counsel to oppose access to the material produced on subpoena is at best ironic if not potentially ill-advised.
I do not propose to consider the issue of whether a broader “public interest immunity” exists (at common law or otherwise) at any great length as it is unnecessary to do so having regard to the above matters and, further, they are matters more appropriately addressed by superior, appellate courts. By reference thereto, however, I incorporate the relevant portions of my earlier decision in Jermyn & Carling [2012] wherein a discussion of same was undertaken:
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’.[2] 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.
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.
[2] A. Ligertwood, Australian Evidence (4th Ed), 2004, LexisNexis Butterworths, Sydney, at 385.
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.
I am satisfied that the above authorities represent the present state of the law. Accordingly, the basis for exclusion of evidence relating to therapist-patient communications must be found in either application of the provisions of the Evidence Act 1995 (NSW) (section 126B) or in the more general discretion to exclude evidence as lacking relevance or probative value.
Conclusion
For the above reasons I am satisfied that the subpoena issued by the father’s attorneys and addressed to each of the mother’s treating general practitioners are:
a)Relevant and appropriate and thus not a “fishing expedition”;
b)Serve a genuine forensic purpose;
c)Aid in the assessment and determination of the best interests of the subject children; and
d)Aid in the determination of the proceedings particularly in addressing issues of central and fundamental importance thereto namely allegations of family violence and the suggested impact of same, whether made out or refuted, upon the children’s future care arrangements.
Whilst I accept that there may be some real force to a careful, particular and specific consideration of the ethical and public policy issues raised by the above writings and authorities this is not a case to which such matters could apply so as to exclude the evidence sought to be produced (or more correctly access to inspect material which might ultimately be sought to be tendered).
I certify that the preceding eighty-five (85) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 20 February 2015
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