SAMPSON & HARTNETT
[2014] FCCA 99
•24 January 2014
FEDERAL CIRCUIT COURT OF AUSTRALIA
| SAMPSON & HARTNETT | [2014] FCCA 99 |
| Catchwords: PRACTICE AND PROCEDURE – Subpoena – objection to subpoena – where objection taken by hospital to production of a party’s medical records and counselling records – relevance – legitimate forensic purpose – best interests of the children – whether evidence unfairly prejudicial – relevance – where material produced in answer to subpoena appears to be irrelevant – evidence that is not relevant in a proceeding is not admissible – whether evidence will disclose details of an informant of a mandatory notification to Department of Family and Community Services. PRACTICE & PROCEDURE – Transfer to Family Court where matter likely to take in excess of four days of hearing time if it proceeds to a final hearing – where application transferred in accordance with Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court of Australia. |
| Legislation: Evidence Act 1995 (Cth), ss.56, 118, 119, 126B, 133, 135 Family Law Act 1975 (Cth), ss.68L, 69ZX Federal Circuit Court of Australia Act 1999 (Cth), s.39 Children and Young Persons (Care and Protection) Act 1998 (NSW), ss.27, 29 Evidence Act 1995 (NSW), s.126B Federal Circuit Court Rules 2001, r.15A.12 |
| Apache Northwest Pty Limited v Western Power Corporation (1998) 19 WAR 350 Attorney General v Mulholland [1963] 1 All ER 767 Behrooz v Secretary of Department of Immigration & Multicultural & Indigenous Affairs [2004] HCA 36 Fried v National Australia Bank Ltd [2000] FCA 910 Jermyn & Carling [2012] FMCAfam 814 Plastec Australia Pty Limited v Plumbing Solutions and Services Pty Limited (No.2) [2010] FCA 670 R v Barton [1981] 2 NSWLR 414 |
| Applicant: | MS SAMPSON |
| Respondent: | MR HARTNETT |
| File Number: | SYC 526 of 2013 |
| Judgment of: | Judge Scarlett |
| Hearing date: | 6 September 2013 |
| Date of Last Submission: | 6 September 2013 |
| Delivered at: | Sydney |
| Delivered on: | 24 January 2014 |
REPRESENTATION
| Counsel for the Applicant: | Mr de Robillard |
| The First Respondent: | In person |
| Counsel for the Other Party: | Mr Blount |
| Solicitors for the Other Party: | Holman Webb |
| Solicitors for the Independent Children's Lawyer: | Legal Aid NSW |
ORDERS
The objection by (omitted) Hospital to the production of the documents referred to in paragraph 2 of the Schedule to the subpoena issued on behalf of the Respondent to (omitted) Hospital being all documents, including all correspondence, records and notes in relation to any communication, or consultation with, or the attendance of Ms Sampson (dob (omitted)) at (omitted) Hospital from 01 July 2012 up to the date of service of the said subpoena is sustained.
The documents referred to in Schedule 2 of the said subpoena are to be returned to (omitted) Hospital.
The objection by (omitted) Hospital to the production of the documents referred to in paragraph 3 of the Schedule to the subpoena issued on behalf of the Respondent to (omitted) Hospital being all documents, phone records, notations and case notes/files of Mr B ((omitted)), Senior Social Worker relating to attendances with/upon Ms Sampson, X (aka Sampson), and Y (aka Sampson), including but not limited to all correspondence, records and notes made/resulting in a mandatory notification to NSW Department of Family and Community Services (Ref No (omitted)) for “the period” is dismissed PROVIDED THAT:
(a)(omitted) Hospital produces to the Court copies of the abovementioned documents from which the name of the informant is redacted from the record within thirty (30) days; and
(b)The Respondent provides to the Court a written undertaking in accordance with Sub Rule 15A.12(2) that he understands and will comply with the requirements of the Sub Rule to:
(i)Use the documents only for the purpose of the proceedings; and
(ii)Not disclose the contents of the documents or give a copy of them to any other person without the Court’s permission.
The Respondent is to comply with Order (3)(b) above by 22 February 2014.
The objection by (omitted) Hospital to the production of all documents, phone records, notations, case notes/files of Mr B ((omitted)), Senior Social Worker relating to attendances with/upon Z (aka Sampson) is sustained.
The documents referred to in Order (5) above are to be returned to (omitted) Hospital.
The proceedings are transferred to the Family Court of Australia at Sydney under s. 39 of the Federal Circuit Court of Australia Act 1999.
IT IS NOTED that publication of this judgment under the pseudonym Sampson & Hartnett is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).
| FEDERAL CIRCUIT COURT OF AUSTRALIA AT SYDNEY |
SYC 526 of 2013
| MS SAMPSON |
Applicant
And
| MR HARTNETT |
Respondent
REASONS FOR JUDGMENT
Application
This is an objection to the production of documents under a subpoena issued to (omitted) Hospital. The objection is made by (omitted) Hospital itself. The mother, who is the Applicant in the substantive proceedings, also opposes the production of these documents.
Background
The parties have a lengthy history of litigation in the Family Court of Australia before these proceedings were commenced in this Court. It would seem to be more appropriate for these matters to be continued in the Family Court rather than remain in the Federal Circuit Court.
On 5 February 2013 the mother commenced proceedings, seeking interim orders relating to the children’s schooling and final orders varying earlier parenting orders. On that same day she filed an Application – Contravention, alleging breaches by the father of certain orders made by the Family Court of Australia on 19 February 2009.
The final orders sought in the mother’s application are:
1. That the Mother have sole parental responsibility for making decisions for the day to day care, welfare and development of the Children, X and Y.
2. That the Children live with the Mother and spend time with the Father.
2.1 That is fortnightly Friday at the conclusion of school to Monday morning
2.2 That on fortnightly Wednesday at the conclusion of school to Thursday the commencement of school
2.3 That the Father spend half the school holidays with the Children
2.4 The Children spend Christmas 2013 with the Mother and thereafter each alternative year
3. For the purpose of these Orders unless otherwise provided, the Father shall during school term collect the Children from school and return them to the school for changeovers.
4. At all times other outside school times, changeover shall be outside (omitted) Church, (omitted).
5. That the Children spend time with the Mother, if not in her care, on each of the Children’s Birthdays, and the Mother’s birthday and Z’s birthday for a period of 4 hours.
6. That the Children spend time with the Father, if not in his care, on each of the Children’s Birthdays, and the Father’s Birthday for a period of 4 hours.
7. Phone contact between the Children and their Father at times when the Children are in the Mother’s care on Tuesday, Thursday and Saturday between 5-6pm.
8. Phone contact between the Children and their Mother at times when the Children are in the Father’s care on Saturday between 5-6pm.
9. The Father pays ongoing Child Support and the current Child Support Debt.
The father filed a Response on 15 February 2013, seeking dismissal of the mother’s Applications for interim and final orders and the appointment of an Independent Children’s Lawyer to represent the interests of the children under the provisions of s. 68L of the Family Law Act 1975 (Cth).
On 26 February 2013 the mother filed an Application in a Case, seeking interim parenting orders. The Application was returnable on 21 March 2013.
On 21 March 2013 Kemp FM[1] made Orders:
a)directing that the children’s interests should be represented by a lawyer under s.68L of the Family Law Act;
b)by consent:
i)providing that the children should remain enrolled at (omitted) Public School;
ii)discharging earlier interim orders made on 8 February and 5 March 2013;
iii)dismissing the mother’s Interim Application filed on 5 February 2013;
iv)dismissing the mother’s Interim Application filed on 26 February 2013; and
v)dismissing the mother’s Contravention Application filed on 5 February 2013.
[1] As his Honour then was
The Court noted that:
Any decision regarding the transfer application to the Family Court of Australia is reserved until his Honour has more details about the history of the matter and the Independent Children’s Lawyer has been appointed.
On 3 June 2013 the Independent Children’s Lawyer filed a Notice of Address for Service.
The Subpoena
On 26 June 2013 the father filed a subpoena directed to (omitted) Hospital requiring production of the following:
2. All documents, including all correspondence, records and notes in relation to any communication, or consultation with, or the attendance of Ms Sampson (dob (omitted)) at (omitted) Hospital from 01 July 2012 up to the date of service of this subpoena (“the period”).
3. All documents, phone records, notations and case notes/files of Mr B ((omitted)), Senior Social Worker relating to attendances with/upon Ms Sampson, X (aka Sampson), Y (aka Sampson), Z (aka Sampson) including but not limited to all correspondence, records and notes made/resulting in a mandatory notification to NSW Department of Family and Community Services (Ref No (omitted)) for “the period”.
On 10 July 2013 solicitors acting for (omitted) Hospital filed a Notice of Objection to the subpoena, objecting to the production, inspection and copying of the documents referred to in the subpoena.
The reasons given for objecting to the production of the documents are:
(a) the medical records and counselling records of Ms Sampson are professional confidential communications. They are subject to a professional confidential relationship privilege under s 126B of the Evidence Act 1995 (NSW). The probative value of these records is substantially outweighed by the danger that the evidence might be unfairly prejudicial to a party, and/or are not relevant to the issues between the parties and might cause or result in undue waste of time, within the meaning of section 135 of the Evidence Act 1995 (Cth). Evidence will be brought that disclosure is contrary to the health and wellbeing of the patient and will adversely affect her confidence in the general counselling service of (omitted) Hospital (Health Service);
(b) (omitted) Hospital further objects on public policy grounds in that disclosure of professional confidential records may deter future patients of the Health Service from attending or participating in counselling and other health services, and undermine their confidence in the Health Service.
(c) Concerning documents required by Schedule 3 to the subpoena, the protection of the identity of the person making a report under section 27 of the Children and Young Persons (Care and Protection) Act 1998 (NSW) is sought, in accordance with s 29 of that Act, including but not limited to the provisions of s 29(f) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).
The reasons given for objecting to the inspecting or copying of the documents are identical to the reasons in the immediately preceding paragraph.
Evidence and Submissions
The hospital relied on an affidavit sworn by Ms M, Manager Social Work at (omitted) Hospital, on 30 August 2013.
In her affidavit, Ms M deposed:
6. I am aware that Ms Sampson was referred to the Health Service by the domestic violence proactive support service (DVPASS) for counselling on the 28 June 2012. A senior social worker on my professional staff provided counselling services to Ms Sampson from 28 June 2012.
7. I am informed and verily believe that Ms Sampson has requested that the confidentiality of her counselling and medical records be maintained and that her ex-husband not have access.
8. The Health Service provides counselling and other services to victims of domestic violence and sexual assault. The confidence of the patient population, in the services provided, is paramount for the effectiveness of the health service. It is important that the patients of the service, who are victims of domestic violence and sexual assault, can feel free to access our services without fear that the confidentiality of the counselling will be breached.
…
10. Patients and clients of our services can be confident that their counselling records will not be disclosed to their former spouse or former partner in legal proceedings without compelling reasons and the exercise of judicial discretion.[2]
[2] Affidavit of Ms M 30.8.2013 at [6]-[8],[10]
The Hospital also relied on the affidavit of Mr B, Senior Social Worker at (omitted) Hospital, affirmed on 30 August 2013.
In his affidavit, Mr B deposed:
4. Ms Sampson was referred to the Health Service by the Domestic Violence Pro-Active Support Service (DVPASS) for counselling on 28 June 2012. I first saw Ms Sampson on 24 July 2012 and I have provided counselling to Ms Sampson since 24 July 2012.
5. Ms Sampson has requested that the confidentiality of her medical record be maintained and that her ex-husband not have access.
6. In my professional opinion, the disclosure of the medical and counselling records of Ms Sampson to her ex-husband will cause her psychological harm including shame, humiliation and fear; will adversely impact on her emotional wellbeing, and aggravate her symptoms, concerns and worries. Disclosure to her ex-husband will also undermine her confidence in the Health Service, further undermining the effectiveness of the treatment provided.[3]
[3] Affidavit of Mr B 30.8.2013 at [4]-[6]
Not surprisingly, the mother, through her Counsel, supports the Hospital in its objection to the subpoena. The father, equally unsurprisingly, opposes the application by the Hospital, as does the Independent Children’s Lawyer.
For the Hospital, Mr Blount of Counsel noted that in Jermyn & Carling[4] the Court had resolved the issue of inspection of confidential records by granting leave to the parties’ legal representatives to inspect the documents, but not to the parties themselves. This course is not open in the present case, as the father is a self-represented litigant. Further, under Rule 15A.12(2), a person who inspects or copies a document under the Rules must:
a)Use the document only for the purpose of the proceedings; and
b)Not disclose the contents of the document or give a copy of it to any other person without the Court’s permission.
[4] [2012] FMCAfam 814
It is submitted that the Court should not give leave to the father to inspect or copy any document unless he gives an express undertaking to the Court, either orally or in writing, that he understands Rule 15A.12(2) and understands that he is bound by it.
Mr Blount also submitted that:
a)The subpoena must seek documents that are at least apparently relevant to the issues between the parties and, where documents are sought from a third party, balance the interest of the litigant against that of the third party (R v Barton[5] at 419);
b)A subpoena cannot be used as an instrument of oppression and in determining whether a subpoena is oppressive, the Court should ask whether the subpoena seeks material for a legitimate forensic purpose (Plastec Australia Pty Limited v Plumbing Solutions and Services Pty Limited (No 2)[6] at [35]);
c)Where a claim is made that a document is privileged, the Court may inspect the document for the purpose of determining the question of privilege (Evidence Act 1995 (Cth), s.133). At general law, confidential communications are not necessarily privileged and the Court has discretion whether to permit inspection by the party seeking production (see Attorney General v Mulholland[7]at 772-773).
d)Confidentiality is not a ground for setting aside a subpoena but is a factor to be taken into account when determining whether the subpoena is oppressive. The relevance of the confidential document being sought is a further factor (Apache Northwest Pty Limited v Western Power Corporation[8] at 380-381).
[5] [1981] 2 NSWLR 414
[6] [2010] FCA 670
[7] [1963] 1 All ER 767
[8] (1998) 19 WAR 350
Mr Blount drew the Court’s attention to the decision of Harman FM[9] in Jermyn & Carling[10], where his Honour analysed the principles of public interest objection to inspection at paragraphs [60] – [64] of his judgment:
a)The welfare of a child may override any privilege which either parent may possess;
b)There is a public interest in the proper administration of justice that all relevant evidence should be produced to the court, but this is subject to exception;
c)Public interest immunity differs from privilege as it operates for the benefit of the public interest in general and does not protect private relationships;
d)Public interest immunity may be claimed because an individual document is privileged, or because the individual document belongs to a class of documents on the ground that vital organisations cannot operate if certain classes of communication are divulged.
[9] As his Honour then was
[10] supra
It is submitted on behalf of the Hospital that:
a)Paragraph 2 of the subpoena is oppressive because it seeks “all documents” and the Court should set it aside because:
i)The documents included documents relating to the mother’s general health, which are unlikely to be relevant;
ii)The documents produced include documents relating to the counselling of the mother and there is a public interest in preserving the expectation of the mother and other women using the counselling service that their confidence will be protected; and
iii)The documents produced contain communications caught by s.118(a) and arguably caught by s.119(a) of the Evidence Act.
iv)In the alternative, the Court should exercise its discretion not to give leave for the father to inspect any of the documents in paragraph 2 on the ground of public interest.
v)Further in the alternative, the Court should exercise its discretion to give leave to inspect the documents produced in accordance with paragraph 3 of the subpoena only if the name of the informant is redacted from the record and the father gives an undertaking to the Court affirming his obligation under Rule 15A.12(2).
Counsel for the mother objected to the father having access to the material produced on subpoena, submitting that the issues relating to the children by which the documents became relevant had not been identified. He submitted that the father had not demonstrated a legitimate forensic purpose for the production of the material, referring the Court to the decisions of Fried v National Australia Bank Ltd[11] and Behrooz v Secretary of Department of Immigration & Multicultural & Indigenous Affairs[12]).
[11] [2000] FCA 910
[12] [2004] HCA 36
The father submitted that the material relating to the mother’s counselling was relevant because the mother had made it so. She had claimed as part of her case that there was ongoing domestic violence and a consequent risk of harm to the children. He was not pressing for access to anything legally privileged. He submitted that domestic violence was a live issue, as the mother had referred to it in her affidavit in support of her Application for Final Orders.
The father said that he was happy to give the undertaking under Rule 15A.12 sought by (omitted) Hospital.
Ms C for the Independent Children’s Lawyer submitted that the father was not seeking material covered by legal professional privilege or matters relating only to the mother.
A subpoena issuer must establish a legitimate forensic purpose for the subpoena. Oppression is not a live issue.
The subpoena has been issued in the context of an Application by the Mother to re-open the parenting proceedings. In her view, the father had identified a legitimate forensic purpose for the subpoena.
Conclusions
I have read the material produced on subpoena for the purpose of determining whether the objections to the subpoena raised by (omitted) Hospital should be upheld or dismissed. I have considered the submissions of the parties, both written and oral, and I have read the authorities to which I have been referred.
Paragraph 2 of the Schedule seeks the production of:
All documents, including all correspondence, records and notes in relation to any communication, or consultation with, or the attendance of Ms Sampson (dob (omitted)) at (omitted) Hospital from 01 July2012 up to the date of service of this subpoena (“the period”).
Some material has been produced. I have read the material which goes only to matters concerning the mother’s general health. It appears to me to be quite irrelevant to the matters which are sought to be litigated.
Allowing parties access to this material would be a breach of the mother’s privacy and would be likely to cause her some embarrassment. It would not, in my view, assist the Court in determining the matters under litigation.
Evidence that is irrelevant is inadmissible. As s.56 of the Evidence Act makes clear:
(1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in a proceeding.
(2) Evidence that is not relevant in the proceeding is not admissible.
I am satisfied that the material produced in answer to paragraph 2 of the Schedule to the subpoena is irrelevant. Consequently, it is not admissible.
In the exercise of the Court’s discretion, I accede to the submission by Counsel for (omitted) Hospital to refuse leave to the Respondent or any other party to inspect the documents produced in answer to paragraph 2 because the documents are confidential and not relevant to a proper question in the substantive proceedings.
The documents produced may be returned to the Hospital.
Paragraph 3 of the Schedule seeks the production of:
All documents, phone records, notations and case notes/files of Mr B ((omitted)), Senior Social worker relating to attendances with/upon Ms Sampson, X (aka Sampson), Y (aka Sampson), Z (aka Sampson) including but not limited to all correspondence, records and notes made/resulting in a mandatory notification to NSW Department of Family and Community Services (Ref No (omitted)) for “the period”.
It is the mother who has put the issue of family violence into her case, in her affidavit of 5 February 2013 at paragraphs [8] and [16].
Further, in her affidavit of 14 August 2013 the mother annexes a letter dated 21 September 2012 addressed to the Magistrate at Waverley Local Court on the letterhead of (omitted) Hospital. This letter informs the Local Court that the mother has been attending domestic violence counselling.
The letter also informs the Local Court that the writer of the letter made a mandatory notification to the Department of Family and Community Services, quoting a reference number. The writer of the letter “outed” himself as the notifier.
I note the submission from Counsel for the Hospital that the Hospital objects to the production and inspection of the documents sought in paragraph 3 of the subpoena “only insofar as the name of the person making the mandatory report is not redacted in conformity with s 29(f) of the Children and Young Persons (Care and Protection) Act 1998 (NSW).[13]
[13] Submission paragraph [22]
With respect, it appears that the mother has already “let the cat out of the bag” by annexing this letter to her affidavit. The letter clearly identifies the writer as the notifier.
With one exception, the matters referred to are relevant to the matters to be decided by the Court as the mother herself has raised the issue. She can hardly be heard to claim that the matter that she has raised should not now be investigated.
As I said, there is one exception. Paragraph 3 seeks documents relating not only to the mother and the parties’ children X and Y, but the child Z, the child of the mother by a subsequent relationship. The mother is not seeking any orders with respect to Z, except for her proposed Order 5 in her Application, which says:
That the Children spend time with the Mother, if not in her care, on each of the Children’s Birthdays, and the Mother’s Birthday and Z’s birthday, for a period of 4 hours.
That passing reference to Z is not, in my view, sufficient to justify the production of documents relating to attendances on her by Mr B. Whatever material there is in respect of attendances on a child who is not the subject of the proceedings cannot be relevant to the matters to be decided by the Court.
In the circumstances, it is difficult to see why the Hospital has sought to have the name of the notifier redacted from the documents, when the same notifier had already “outed” himself as the notifier in correspondence with Waverley Local Court, in a letter clearly intended to be considered by the Magistrate. I will, however, accede to the application by counsel for the Hospital that the Court should exercise its discretion to give leave to the Respondent to inspect the documents produced in respect of paragraph 3 of the subpoena on condition that:
a)the name of the informant is redacted from the record;
b)the Respondent father provides an undertaking to the Court affirming his obligation under sub rule 15A.12(2); and
c)all documents relating to the child Z are removed.
Transfer to the Family Court of Australia
There remains one matter for consideration, the future progress of this matter. It appears clear that, if this matter proceeds to a final hearing, it is likely it would take in excess of four days of hearing time. The parties have a lengthy history of litigation in the Family Court over a number of years.
In the circumstances, I propose to apply the Protocol for the division of work between the Family Court of Australia and the Federal Circuit Court of Australia and transfer the matter to the Family Court. In doing so, I have considered the factors required to be considered under subsection 39(4) of the Federal Circuit Court of Australia Act 1999 (Cth) and the relevant factors set out in Rule 8.02.
As I have come to the view that the interests of the administration of justice require the matter to be transferred, I will transfer the matter to the Family Court of Australia under the provisions of s.39(1) of the Act.
I certify that the preceding forty-nine (49) paragraphs are a true copy of the reasons for judgment of Judge Scarlett
Date: 24 January 2014
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