SAMPSON & HARTNETT - [2014] FCCA 99

FEDERAL CIRCUIT COURT OF AUSTRALIA

SAMPSON & HARTNETT

[2014] FCCA 99

Catchwords:
FAMILY LAW – Children.

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading SAMPSON & HARTNETT

Details

AGLC: SAMPSON & HARTNETT [2014] FCCA 99
Case: [2014] FCCA 99
Decision Date: 24 January 2014

CaseChat Overview and Summary

This matter concerned an objection by a hospital to a subpoena issued on behalf of the Respondent, seeking production of medical and counselling records of Ms Sampson, and records relating to mandatory notifications made to the Department of Family and Community Services. The proceedings were before Judge Scarlett.

The court was required to determine whether the hospital's objections to the production of these documents should be sustained. Specifically, the court considered whether the records were protected by professional confidential communications privilege under s 126B of the Evidence Act 1995 (NSW), whether their probative value was outweighed by the danger of unfair prejudice or undue waste of time under s 135 of the Evidence Act 1995 (Cth), and whether disclosure would be contrary to public policy by deterring future patients from seeking counselling. The court also considered the protection of the identity of informants under the Children and Young Persons (Care and Protection) Act 1998 (NSW).

The court reasoned that the hospital's objection to the production of Ms Sampson's medical and counselling records was sustained, applying the principles of privilege and potential unfair prejudice. However, the objection to the production of records relating to mandatory notifications to the Department of Family and Community Services was dismissed, subject to the redaction of the informant's name and the Respondent providing an undertaking to use the documents solely for the proceedings and not disclose them without court permission. The objection to records concerning another child, Z (aka Sampson), was sustained. The court also ordered the transfer of the proceedings to the Family Court of Australia, as the matter was likely to exceed four days of hearing time.

Orders

Orders of the court

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.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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. 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]

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.