MILNE & MILNE
[2013] FCCA 1620
•19 September 2013
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MILNE & MILNE | [2013] FCCA 1620 |
| Catchwords: FAMILY LAW – Practice and procedure – objection to subpoena – public interest test. |
| Legislation: Family Law Act 1975 Federal Circuit Court Rules 2001 Federal Circuit Court of Australia Act 1999, s.42 |
| Jermyn & Carling [2012] FMCAfam 814 Baker v. Campbell (1983) 153 CLR 52 D v. National Society for the Prevention of Cruelty to Children [1978] AC 171 Rex v Duchess of Kingston, 20 How. St. Tr 355, 572-73 (1776) R v RJS 45 CR (3rd) 161 Trammel v. United States, 445 U.S. 40 (1980) Other Articles Cited: A. Ligertwood, Australian Evidence (4th Ed), 2004, LexisNexis Butterworths, Sydney Deborah Paruch, “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” published in Eliminating Unintended Bias National Association of Children’s Counsel Manual 2011 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 |
| Applicant: | MR MILNE |
| Respondent: | MS MILNE |
| File Number: | PAC 2493 of 2009 |
| Judgment of: | Judge Harman |
| Hearing date: | 19 September 2013 |
| Date of Last Submission: | 19 September 2013 |
| Delivered at: | Parramatta |
| Delivered on: | 19 September 2013 |
REPRESENTATION
| Solicitors for the Applicant: | Ms Bevan of Sarah Bevan Family Lawyers |
| Solicitors for the Respondent: | Mr Rowlandson of Rowlandson & Co |
ORDERS
The proceedings are listed for interim hearing 8 October 2013 at 9.30am.
Each party is to file and serve any additional material which they seek to rely at interim hearing by 2 October 2013.
Leave is granted to the legal representatives for the parties to inspect the Report produced By Dr S on letterhead of the (omitted) Clinic being a report dated 26 August 2013 addressed to the Registrar Federal Circuit Court of Australia.
The Schedule comprised by Exhibit ‘R1’attached hereto, shall replace that sought to be produced on subpoena addressed to (omitted).
Leave is granted to the attorneys for Mr Milne to inspect material produced by (omitted) and to interfere with material so produced so as to create two separate bundles being those called for to be produced by Schedule Exhibit ‘R1’ and those which are not.
Those which are not sought and thus to which leave to inspect in favour of the attorneys for the Respondent will not extend are to be placed in a sealed envelope not to be opened pending further order of the Court.
The attorneys for Ms Milne shall, as and from commencement of business 1 October 2013, be entitled to inspect the material produced by (omitted) and subject to the above.
THE COURT NOTES THAT:
The Report produced and released as above is a document produced by the (omitted) Clinic without the request of either party and does not satisfy the subpoena served upon Dr S in any fashion and thus the subpoena shall remain on foot and may in the future and upon notification upon Dr S to do so, be the subject of further call.
Material has already been produced to the Court by (omitted) but leave has not yet been granted to inspect it in light of objection.
IT IS NOTED that publication of this judgment under the pseudonym Milne & Milne is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT PARRAMATTA |
PAC 2493 of 2009
| MR MILNE |
Applicant
And
| MS MILNE |
Respondent
REASONS FOR JUDGMENT
These proceedings come before the Court today with respect to an objection to the production of material pursuant to a subpoena to produce documents issued at the request of the father’s attorney.
The subpoena seeks the production of the mother’s medical and specifically psychological/psychiatric records.
The objection is made not by a party but by the recipient of the subpoena, a consultant psychiatrist, Dr S.
The subpoena the subject of the objection was filed on 23 May 2013 and served upon Dr S a short time later. Material was produced by Dr S on or about 26 August 2013. The objection is raised in a covering letter accompanying the material produced. A formal Notice of Objection has not been completed as required by the Federal Circuit Rules 2001. On that basis and if a formal approach were adopted then the objection raised by Dr S might be disregarded. However, the Federal Circuit Court of Australia Act 1999 requires that the Court operate with informality (section 42).
The material that has been produced by Dr S has been accompanied by a letter dated 26 August 2013, and addressed to the Registrar of the Court, and stating as follows:
Enclosed are the relevant subpoena documents modified to the restriction as requested by the father’s attorneys in correspondence dated 17 July 2013.
The correspondence between Dr S and those who have caused the subpoena to issue is not before the Court. That is not a criticism of either Dr S or the father’s attorneys. However it would appear that the correspondence, prior to the matter called on today, has not been sighted by the attorneys for the mother it being her medical records to which the subpoena relates. The matter has been stood in the list for some little time to enable discussion between the attorneys to resolve, if possible, any issue regarding inspection. The issue has not been resolved, although it is the very type of issue that should be settled through common sense and compromise.
It is also apparent that following receipt of the subpoena Dr S has engaged in a somewhat unusual course of action in seeking to negotiate with the father’s attorney as to what compliance, if any, would occur. The letter continues:
Please note that the enclosed subpoena information, as well as Ms Milne’s medical file that was obtained by subpoena from (omitted) Hospital, contains highly confidential psychiatric information. I would envisage that the effect of third parties obtaining, reading and distributing these notes would be detrimental to Ms Milne’s mental state, and the ongoing doctor-patient relationship she has with me as her treating psychiatrist.
The file produced by the (omitted) Hospital was the subject of an administrative inspection Order, following the filing of a Notice of Request to Inspect filed on 9 July 2013. No objection to inspection was raised by either the hospital or Ms Milne whose medical records were the subject of production.
The objection by Dr S, if it might be so phrased and thus so treated for present purposes, is based on a broad “public interest” argument founded in doctor/patient confidentiality. Such broad public interest objections have previously been dealt with by me in the decision of Jermyn & Carling [2012] FMCAfam 814 and in particular paragraphs 58 to 96 thereof, which I adopt and incorporate herein:
58. 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
59. I have had regard to a number of Australian authorities regarding public interest privilege.
60. 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”
61. 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…”
62. 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.”
63. 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:
64. 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.
[1] A. Ligertwood, Australian Evidence (4th Ed), 2004, LexisNexis Butterworths, Sydney, at 385.
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.
65. 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.
66. 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.
67. 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.
68. 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).
69. 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.
70. 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).
71. 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”.
72. 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)
73. 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.
74. In Duits the Superior Court also opined (paragraph 24):
The Supreme Court has effectively ruled that privilege should not be a bar to justice.
75. 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.
76. 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).
77. 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.
78. 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.
79. 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.
80. 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.
81. 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.
82. 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.
83. In this case Dr. Rickard-Bell, 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 Harrington (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.
84. 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.
85. 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.
86. 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).
87. 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.
88. 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.
89. The circumstances that are the subject of the therapeutic counselling provided by Ms Starkey 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.
90. 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.
91. 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.
92. 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 Starkey, 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 Starkey which are, after all, a reportage of that received by Ms Starkey and thus forming the basis of any diagnosis or prognosis or treatment regime which Ms Starkey 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.
93. 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.
94. 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.
95. 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.
96. Whilst clearly the symptoms for which the Applicant has sought treatment with Ms Starkey 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.
In reviewing decisions of various Supreme Courts, and other Courts of like jurisdiction, both domestically and internationally, it is clear that there is a real and competing balance between the interests of justice, the administration of justice, affording of due process to parties on the one hand and the effective and appropriate treatment of patients requiring treatment and the preservation of therapeutic relationships between patients and medical practitioners, (particularly specialists such as psychiatrists in the case of Dr S) on the other.
The notes that are produced are not suggested to be other than relevant. Indeed on the basis that there is no objection to the subpoena or inspection of material produced by Mr Milne's Counsel, I can readily accept that the point is not taken.
The proceedings concern future care arrangements for a child of the parties, X born (omitted) 2006. The parties each seek Orders that would vary existing Orders made between them by consent. Those Orders provide for an equal shared care arrangement. Each parent seeks a primacy of care of the child. In those circumstances it is difficult to comprehend how the documents would not be relevant.
I am conscious to make clear that it is not suggested by the Court that a diagnosis of mental illness or mental disorder as defined in the Mental Health Act1990 is, by and of itself, relevant nor dispositive or determinative of proceedings or issues raised therein. However, the mother’s health records are relevant, relating as they may well to factors under the legislation, such as parental capacity.
There is no statutory basis of objection created by the Evidence Act 1995 (Cth) available. The records do not arise with respect to journalistic source integrity, penitent confession, or, in the case at least of New South Wales legislation, sexual assault counselling.
The records do not arise in the context of family counselling as defined in Part II of the Family Law Act 1975.
By reference to the above authorities and legislative exemptions there is no basis for the objection.
On the basis that the records are prima facie relevant, (and there is no suggestion that it is otherwise), it would appear that the most overwhelming consideration is that discussed by the Full Court in Hutchings & Clarke (1993) FLC 92-373– i.e. the general public interest and the proper administration of justice, which is generally guided by the principle that all relevant evidence should be adduced to the Court. The basis of “public interest” argued is the need to protect the confidential and therapeutic patient/doctor relationship. That is not a recognised basis of public interest objection and thus absent argument as to a lack of relevance the documents are admissible and their production and inspection legitimately required for good forensic purpose.
Finally, it is important to note that the documents that are produced to the Court and to which access will now be granted, do fulfil that called for by the subpoena.
The subpoena seeks the production of:
All medical records, notes, memoranda, referrals, file notes and other documents in relation to the treatment of the mother [as named].
No such documents have been produced to the Court by Dr S.
What has been produced to the Court is a document which, on its face:
a)Could not be a business record by reference to section 69 of the Evidence Act 1995 (Cth); and
b)Would appear objectionable as a document prepared for the purpose of litigation.
The document that is produced is a six paragraph report dated 26 August 2013 and addressed to the Registrar of the Court. It commences:
In response to the subpoena and modified restriction as requested by the father’s attorneys –
The report then sets out, under six subheadings, a number of statements. However, those statements are very much statements of professed expert opinion relating to diagnosis, treatment and prognosis.
It is to be noted that the mother has not sought a report from her treating doctor, Dr S. Dr S has, without apparent consultation with the mother, absent the mother’s apparent authority, albeit with the best of intentions, prepared a report as to her engagement with the mother.
What is produced is clearly a summarised report prepared from past involvement with the mother and/or by reference to the very documents which were sought to be obtained by the subpoena. The report may or may not be of assistance to the father in the conduct of the proceedings. The report may or may not be of assistance to the mother in the conduct of the proceedings. The report does offer what could well be referred to critically by the father’s attorney as partisan support for the mother. That is, perhaps, to be expected.
Partisan support of the mother is consistent with that referred to in the covering correspondence recited above, in that the treater would not wish to interfere or in any fashion cause difficulties with respect to the ongoing therapeutic relationship between doctor and patient. Thus, one would expect a supportive position.
The correspondence, 17 July 2013, makes clear that the attorneys for the father have never sought the provision of a report. They have sought source documents as to the mother’s past attendance and treatment. A report is all that they have received in response to the subpoena issued at their request. The report passes all of the information contained with the doctor’s notes through a filter removing anything the doctor desires to remove.
The correspondence reads:
In order to resolve the issue in dispute presumably a steadfast opposition to production of material continuing we are instructed to limit the scope of the subpoena to any documents in relation to the following [then setting out the six subheadings adopted in the report]…
We confirm that it is not the intention of our client to “dig up dirt” on Ms Milne, but to ensure that all relevant information is available for the court to make a determination as to what parenting arrangements are in the best interests of the child subject to these proceedings. Our client is eager to protect the professional relationship between Dr S and your client, and is hopeful that this will resolve any concerns she may have regarding irrelevant sensitive information being known to our client or the court.
The above correspondence was addressed to the chairman of the clinic through which Dr S is employed. I am satisfied the correspondence has been made known to Dr S.
As indicated, what is produced does not fall within the scope of nor satisfy that which the attorneys for the father had sought, being the production of documents existing at the time of the subpoena’s service, and to which recourse has presumably been had in preparing the summary report produced. Accordingly, the subpoena will remain on foot, and if any further call is sought to be made by the attorneys for the father such call will remain open to them.
The correspondence forwarded with the subpoena would also appear to misapprehend the purpose of the subpoena and the rules relating to the release of material produced in response thereto. It envisages that third parties, presumably either Mr Milne or his attorney, would obtain the documents.
The documents are produced to the Court. The documents should they ultimately be produced, will remain with the Court and, in accordance with the Federal Circuit Court Rules 2001, will not be copied without leave. No such Application is made nor has it been foreshadowed.
Leave to inspect will, absent any submission as to why the usual practice would be departed from, be restricted to the legal representatives of the parties.
Proceedings cannot be conducted without necessary and relevant information nor can they be conducted without transparency. The Court does not conduct its affairs in camera. Both parties, through their legal representatives, are entitled to be made aware of the contents of the documents. I have not been asked to impose any restriction upon discussion of the contents of the documents with the parties following inspection by each attorney and would be loath to do so absent an Application and compelling submissions.
The good doctor’s letter concludes by opposing distribution of the notes. No Application is made for copying of the material, and as medical records the leave extended by the Federal Circuit Court Rules 2001 to allow the copying of documents does not apply. Thus, the Court’s clear and specific leave is required to do so. No Application to copy the material has been made nor alluded to by the attorney for the father in their dealings with Dr S. Leave would not be granted without notice to the document’s owner and they having been afforded due process.
For those reasons I propose to dismiss the objection and grant leave to inspect material produced.
I certify that the preceding thirty six (36) paragraphs are a true copy of the reasons for judgment of Judge Harman
Associate:
Date: 3 December 2015
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