SAWKINS & DEBELL

[2020] FamCA 660

FAMILY COURT OF AUSTRALIA

SAWKINS & DEBELL [2020] FamCA 660

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – objection to Subpoena – Where the acronym CSA is found in the subpoena material – where the identification of the acronym may suggest childhood sexual abuse – where victims or alleged victims of a sexual offence are protected under relevant sections of the Evidence Act 1929 (SA) – where the interested party has not clearly made a case that the material produced pursuant to the Subpoena falls within that category – objection set-aside.

Family Law Act 1975 (Cth)
Evidence Act 1929 (SA) ss 67E, 67F(1)(c)
Judiciary Act 1903 (Cth) s 79
Evidence Act 1995 (Cth)
Health Care Act 2008 (SA)

Northern Territory v GPAO (1999) 196 CLR 553

APPLICANT: Mr Debell

RESPONDENT: Ms Sawkins

INTERESTED PARTY: Local Health Network

INDEPENDENT CHILDREN’S LAWYER: The Family Law Project

FILE NUMBER: ADC 146 of 2016

DATE DELIVERED: 12 August 2020

PLACE DELIVERED: Adelaide

PLACE HEARD: Adelaide

JUDGMENT OF: Mead J

HEARING DATE: 4 June 2020

REPRESENTATION

COUNSEL FOR THE APPLICANT: Ms Lewis of Counsel

SOLICITOR FOR THE APPLICANT: Clelands Lawyers Adelaide Pty Ltd

COUNSEL FOR THE RESPONDENT: Ms Dickson of Counsel

SOLICITOR FOR THE RESPONDENT: Aboriginal Legal Rights Movement

COUNSEL FOR THE INTERESTED PARTY: Mr Whitten of Counsel

SOLICITOR FOR THE INTERESTED PARTY: Crown Solicitor’s Office

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER: Mr Childs of Counsel

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: The Family Law Project

Orders

1. That the Notice of Objection to Subpoena filed herein by the Local Health Network on 15 May 2020 be set-aside.

2. That within seven (7) days of todays’ date the Mother shall identify in writing documents within the Subpoena issued to B Medical Centre issued herein on 4 October 2019 that relate to her personal medical gynaecological and obstetric documents which are not to be inspected and copied by the Father, the Father’s legal representatives or the Independent Children's Lawyer without further order of the Court.

3. That thereafter the Independent Children's Lawyer have leave to inspect and copy the said documents (save and except for those marked confidential) produced pursuant to Subpoena by B Medical Centre in relation to the Mother and forward a copy of such documents as she considers relevant to these proceedings to each of the parties’ legal representatives PROVIDED THAT the parties’ legal representatives do not print or reproduce any of the documents AND FURTHER PROVIDED THAT the Father is not permitted to inspect the said material.

4. That within seven (7) days of todays’ date the Mother shall identify in writing documents within the Subpoena issued to C Medical Centre that to:

   ·her personal medical gynaecological and obstetric documents; and

   ·any documents containing notes specifically relating the psychological treatment she may have sought or been given with respect to the alleged sexual assault at her workplace in December 2018

   which are not to be inspected and copied by the Father, the Father’s legal representatives or the Independent Children's Lawyer without further order of the Court.

5. That thereafter the Independent Children's Lawyer have leave to inspect and copy the said documents (save and except for those marked confidential) produced pursuant to Subpoena by C Medical Centre in relation to the Mother and forward a copy of such documents as she considers relevant to these proceedings to each of the parties’ legal representatives PROVIDED THAT the parties’ legal representatives do not print or reproduce any of the documents AND FURTHER PROVIDED THAT the Father is not permitted to inspect the said material.

Note: The form of the order is subject to the entry of the order in the Court’s records.

IT IS NOTED that publication of this judgment by this Court under the pseudonym Sawkins & Debell has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

Note: This copy of the Court’s Reasons for Judgment may be subject to review to remedy minor typographical or grammatical errors (r 17.02A(b) of the Family Law Rules 2004 (Cth)), or to record a variation to the order pursuant to r 17.02 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT ADELAIDE

FILE NUMBER: ADC 146 of 2016

Mr Debell

Applicant

And

Ms Sawkins

Respondent

And

Local Health Network

REASONS FOR JUDGMENT

Background

1. On 9 March 2017 the parties to these proceedings entered into final consent parenting orders with respect to Z born … 2015.

2. Those orders provided:

   a)For the parties to have equal parental responsibility;

   b)For Z to live with her Mother;

   c)For Z to spend time with her Father:

   i)From midday Sunday until 9.00 am the following Tuesday in each week;

   ii)For no more than 14 consecutive nights during the Father’s annual leave;

   iii)For specific times on Christmas Day and Z’s birthday each year;

   iv)At other times as agreed.

3. There were also ‘specific issues’ orders relating to medical advice, health information, transport of Z, handovers, notice as to Z’s address and mutual injunctions in relation to the conduct of each party towards the other in Z’s hearing.

4. The current tranche of proceedings was commenced by way of an Initiating Application filed by the Father on 22 May 2019.

5. On 29 May 2019 the Father issued Subpoenas to South Australia Police, D Hospital, E Hospital and F Hospital.

6. On 4 June 2019 the Mother filed her Response with respect to the Father’s Initiating Application and on 5 June 2019 issued Subpoenas to the Local Health Network, South Australian Police Department, E Hospital and Drug and Alcohol Services South Australia.

7. The Subpoenas issued by the Father all sought records relating to the Mother. The records sought were wide in scope.

8. Those issued by the Mother all sought extensive records with respect to the Father.

9. The Subpoena filed by the Mother to the E Hospital sought in particular psychiatric medical records with respect to the Father.

10. Between 13 June 2019 and 24 July 2019 all eight Subpoenas were returned.

11. On 6 June 2019 Judge Brown had also made orders pursuant to section 69ZW of the Family Law Act 1975 directed to South Australia Police and the Department for Child Protection with respect to Z.

12. Documents pursuant to that order were received at the Court from the South Australia Police on 29 July 2019 and from the Department for Child Protection on 5 August 2019.

13. On 20 June 2019 a further Subpoena was issued on behalf of the Mother to the Manager at the H Business seeking employment records relating to the Father.

14. On 30 July 2019 and 5 August 2019 respectively Judge Brown made orders in chambers permitting the parties legal representatives to inspect and copy the documents produced pursuant to the section 69ZW orders directed to each of South Australia Police and the Department for Child Protection.

15. The matter next came before the Court on 30 August 2019. On that day and by consent Judge Brown ordered, inter alia:

    5.The parties’ and their solicitors and the Independent Children’s Lawyer have leave to inspect and copy documents produced under subpoena and pursuant to the Section 69ZW Order.

    6.That neither party shall be at liberty to have possession of any document produced pursuant to subpoena.

    7.That within seven (7) days the mother shall identify in writing documents within the subpoena to the Local Health Network that relate to her personal medical gynaecological and obstetric documents which are not to be inspected and copied by the father.

    8.That the parties and the Independent Children’s Lawyer are at liberty to file on or before 1 November 2019, one affidavit to contain any relevant documents produced pursuant to the said subpoenas provided that neither party shall be provided a copy of this affidavit pending further order.

    9.That the parties and the Independent Children’s Lawyer have leave to issue a further three subpoenas if they are so advised.

16. On 10 September 2019 the Mother filed an Affidavit to which various documents were annexed. Annexure “C” was a copy of correspondence to her from the Department for Child Protection dated 29 July 2019. The other annexures did not relate to the subpoenaed documents referred to in the order of 30 August 2019.

17. On 4 October 2019 the Father issued three further Subpoenas to D Hospital, B Medical Centre and C Medical Centre.

18. On 28 October 2019 the Mother filed Notices of Objection in relation to the Subpoenas directed to those three entities. The reason for the objection in all three Notices was as follows:

    They are likely to contain sensitive medical records of a personal nature not appropriate for disclosure in these proceedings.

19. On 1 November 2019 an Affidavit was filed by the Father to which a significant number of documents were annexed arising from the production of documents pursuant to Subpoenas issued by him on 29 May 2019 to F Hospital, D Hospital and South Australia Police regarding the Mother. He also annexed material arising from documents produced to the Court pursuant to the section 69ZW orders made by Judge Brown.

20. On 12 November 2019 an Affidavit was filed on behalf of the Mother annexing a significant quantity of materials regarding the Father produced pursuant to Subpoenas issued by the Mother on 5 June 2019 to Drug and Alcohol Services South Australia, the Local Health Network and South Australia Police Department as well as arising from material produced pursuant to section 69ZW by the Department for Child Protection.

21. On 28 November 2019 in anticipation of a hearing listed for 2 December 2019 the Mother’s solicitor filed an Affidavit with respect to the Notices of Objection filed on behalf of the Mother to the Subpoena to which I have previously referred.

22. She deposed in the Affidavit to:

    ·a Subpoena being issued on 29 May 2019 to D Hospital and in particular to Dr J requesting production of “all notes, records, reports, letters and other documents pertaining to MS SAWKINS DATE OF BIRTH … 1996”.

    ·to the Father filing the Affidavit on 1 November 2019 to which I have referred and to annexure “F2” of that Affidavit consisting of D Hospital records regarding the Mother including documents relating to mental health assessments and treatments of the Mother.

    ·to reference to Dr J appearing on a number of the pages, for example pages 21 and 22 of the annexure consisting overall of pages numbered 10 to 85.

    ·to a further Subpoena issued to D Hospital by the Father on 4 October 2019 requesting production of “all notes, records, medical, psychological or psychiatric reports, letters, test results, referrals and other documents pertaining to MS SAWKINS date of birth … 1996” and to the Court portal identifying the status of that Subpoena as “awaiting production”.

23. Paragraphs 9 and 10 of that Affidavit were in the following terms:

    9.It may be that the subpoena to Dr J is redundant as all mental health records in relation to the Mother have already been produced. I do not know what if any investigation of that issue has been undertaken by the father’s solicitors.

    10.If the documents have been produced and the court portal wrongly records their lack of production then the mother seeks an order that His Honour Judge Brown and the Independent Children's Lawyer inspect the documents prior to an order being made for the father or his solicitors to inspect and copy, so that His Honour or the Independent Children's Lawyer can identify whether there are any documents contained in the material which is of a highly sensitive and personal nature and not relevant to these proceedings, relating to treatment for a termination of pregnancy or other gynaecological or other irrelevant attendances.

24. In paragraphs 12, 13, 14, 17 and 18 of the Affidavit the Mother’s solicitor further deposed as follows:

    12.In relation to the subpoena to B Medical Centre filed on behalf of the father on 4 October 2019, the subpoena requests production of

    “all notes records, medical, psychological or psychiatric reports, letters, test results, referrals and other documents pertaining to MS SAWKINS date of birth … 1996.

    13.The mother objects to an order to inspect and copy those notes on the basis that they may contain material of a highly sensitive and personal nature and not relevant to these proceedings relating to treatment for a termination of pregnancy or other gynaecological or irrelevant attendances.

    14.The mother seeks that His Honour Judge Brown or the Independent Children's Lawyer inspect any documents, prior to an order being made for the father or his solicitors to inspect and copy, to be able to identify whether there are any documents of the kind referred to in paragraph 13.

    17.      The C Medical Centre subpoena also seeks production of:

    “all notes, records, medical, psychological or psychiatric reports, letters, test results, referrals and other documents pertaining to MS SAWKINS date of birth … 1996”.

    18.The Mother objects to an order to inspect and copy those notes which date from in or about 1998 on several grounds:

    a)The documents sought are too wide and oppressive given that they cover a period of about 21 years

    b)The documents sought amount to a fishing expedition

    c)Some of the documents are likely to contain information of a highly sensitive and personal nature of a kind referred to in paragraph 13 above.

    d)The mother has a current WorkCover claim pertaining to a sexual assault in the workplace. The documents held by C Medical Centre authored by general medical practitioners, WorkCover and an employed psychologist at the health centre refer to the alleged perpetrator of the assault, an Aboriginal man who is a prominent member and elder of the local community. Access to that material would potentially constitute a breach of privacy of the alleged perpetrator, a breach of confidentiality and solicitor/client privilege and contaminate future WorkCover investigations and police investigations.

25. C Medical Centre had complied with the Subpoena on 11 October 2019.

26. On 1 November 2019 correspondence was received by the Court from the Local Health Network.

27. The correspondence was in the following terms:

    Dear Registrar

    Re: Subpoena in the matter of

    Mr Debell & Ms Sawkins – ADC 146 of 2016

    I refer to the attached subpoena dated 4 October 2019 which was served upon the Manager, B Medical Centre. I hereby produce to the Court the documents listed in the schedule below.

    ·All notes, records, medical psychological or psychiatric reports, letters, test results, referrals and other documents pertaining to Ms Sawkins (date of birth … 1996).

    ·All notes, records, reports, letters, test results, referrals and other documents pertaining to Z (date of birth … 2015).

    The Local Health Network (LHN) has not produced to the Court certain documents (or parts of documents) held by Community Mental Health at B Medical Centre relating to Ms Sawkins which contain communications that are protected from disclosure in legal proceedings, namely:

    ·documents (or parts of documents) which contain evidence of a protected communication (a communication relating to a victim or alleged victim of a sexual offence made in a therapeutic context). The reason these documents (or parts of documents) have not been produced is because section 67F (1) (c) of the Evidence Act 1929 (SA) provides that evidence of a protected communication is no liable to discovery or other form of pre-trial disclosure.

    To assist the Court and parties’ legal representatives, the instances and locations of documents which contain protected communications have been identified throughout the documents produced to the Court.

    The documents produced to the Court are medical records and as such, they are not permitted under the Federal Circuit Court Rules to be copied by any other parties.

    LHN does not object to the parties’ legal representatives inspecting the documents produced to the Court, but respectfully asks that access to these documents be restricted due to the sensitive nature of the documents.

    LHN does not require the documents to be returned and hereby consents to the Court managing the documents in accordance with its document destruction policy.

    Please note, I have been advised that B Medical Centre does not hold any record of attendance at this location for either Ms Sawkins or Z.

    If you have any questions about this matter please contact me on ….

    Yours faithfully

    Ms K

    Accredited Freedom of Information Officer

    The Local Health Network

    1 November 2019

28. The correspondence advised the Court that the Local Health Network had not produced certain documents held by Community Mental Health at B Medical Centre relating to the Mother because they contained communications protected from disclosure in legal proceedings namely evidence:

    …of a protected communication (a communication relating to a victim or alleged victim of a sexual offence made in therapeutic context). The reason these documents (or parts of documents) have not been produced is because section 67F (1) (c) of the Evidence Act 1929 (SA) provides that evidence of a protected communication is not liable to discovery or other form of pre‑trial disclosure.

29. On 7 November 2019 paragraph 5 of the consent order of 30 August 2019 was amended such that it read as follows:

    The parties’ and their solicitors and the Independent Children’s Lawyer have leave to inspect and copy the* documents that have been* produced under subpoena and pursuant to the Section 69ZW Order as at the date of this order (30 August 2019)*.

30. The Mother’s objections and the Affidavit of the Mother’s solicitor to which I have referred were before the Court when it was listed before Judge Brown for further hearing on 2 December 2019.

31. On that occasion His Honour made the following orders:

    1.The mother and her solicitor have leave to inspect all the materials from B Medical Centre and C Medical Centre pursuant to subpoena (SAVE & EXCEPT for those marked confidential).

    2.Further consideration of the matter is adjourned to 18 December 2019 at 9:30am for directions.

32. At the further hearing on 18 December 2019 His Honour ordered by consent:

    1.The mother and father’s solicitors and the independent children’s lawyer are at liberty to inspect and copy the documents produced by the C Medical Centre only in respect of the child Z.

    2.Further consideration of the matter is adjourned to 29 January 2020 at 9:30am for directions.

33. On 29 January 2020 Judge Brown made orders inter alia transferring the proceedings to the Family Court of Australia on a date and time to be advised.

34. On 25 February 2020 Registrar Paxton noted inter alia that the three objections to which I have referred earlier herein filed by the Mother remained outstanding and further noted that the Mother’s solicitor advised the Court in relation to the said Subpoena objections that:

    …there is a S67E Evidence Act SA argument and that the Crown may wish object (sic) in relation to the subpoena and that the documents produced pursuant to the subpoena to C Medical Centre may be redacted (no unredacted documents provided).

35. The Registrar adjourned the matter to 3 March 2020 and noted at that hearing inter alia that the Mother’s Notice of Objection to B Medical Centre does not object to the production of the documents, that B Medical Centre had produced redacted documents and not filed a Notice of Objection but had produced a letter flagging an argument pursuant to section 67F(1)(c) of the Evidence Act 1929 and that the Father’s lawyers were requesting compliance by B Medical Centre with the Subpoena. The letter noted by Registrar Paxton was that to which I have already referred dated 1 November 2019.

1. Registrar Paxton ordered that B Medical Centre produce unredacted documents in compliance with the Subpoena by 17 March 2020 and reserved the Father’s costs in that regard. She also noted with respect to documents produced pursuant to Subpoena by C Medical Centre that inter alia the Mother objected to inspection and copying of those documents relating to her (not to the child Z) and ordered that the Independent Children's Lawyer have leave to inspect the C Medical Centre notes in relation to the Mother.

2. Registrar Paxton dismissed the Subpoena to D Hospital at the request of the Father, likewise dismissed the Mother’s objection with respect to those documents and further adjourned the matter to 24 March 2020.

3. On that occasion Registrar Paxton noted that the Independent Children's Lawyer had not been able to inspect documents produced pursuant to the Subpoena to B Medical Centre due to being in Western Australia and being unable to return to South Australia and further, that by undated letter the Local Health Network had requested time to consider their position with regard to redaction of documents and restriction of access to unredacted documents on the grounds of section 67F(1)(c) of the Evidence Act 1929.

4. The Registrar adjourned the matter again to 21 April 2020.

5. On that occasion she ordered inter alia that the proceedings be adjourned for interim argument before me on 18 May 2020 at 2.15 pm and noted that the Local Health Network had not filed an objection but had lodged a letter dated 24 March 2020 with regard to objection, that they had now produced unredacted documents and that the Father would notify them again of the objection process and of the adjourned hearing date.

6. Registrar Paxton also noted that on 2 December 2019 Judge Brown gave leave to the Mother and her lawyer to inspect all material from B Medical Centre, that B Medical Centre have now produced unredacted documents on 25 March 2020 and that the documents relate only to the Mother.

7. She ordered that the Mother and her solicitor have leave to inspect all documents from B Medical Centre pursuant to the Subpoena save and except for those marked confidential and further ordered by consent in paragraphs 7 and 8 of her order as follows:

   (7)That in relation to the Subpoena to C Medical Centre the Independent Children's Lawyer have leave to inspect and copy the documents (except those marked confidential) produced in response to the subpoena to C Medical Centre in relation to the Mother.

   (8)That the Independent Children's Lawyer shall forward a copy of such documents as they consider are relevant to these proceedings to each of the parties legal representatives.

   PROVIDED THAT the parties legal representatives do not print or reproduce any of the documents and further PROVIDING THAT the father is not permitted to inspect the said material.

8. On 15 May 2020 the Local Health Network (hereinafter referred to as “LHN”) filed a Notice of Objection with respect to the production, inspection and copying of some or all of the documents sought by way of Subpoena by the Father from B Medical Centre.

9. The reason given on the face of the document was as follows:

   The records produced to the Court are protected by public interest immunity pursuant to section 67E of the Evidence Act 1929 (SA). The nature of the objection is detailed in the attached document.

10. The document referred to was an Affidavit filed on 22 May 2020 by Michael L, who deposed to being a senior psychiatrist employed by LHN.

11. At the hearing on 26 May 2020 Mr Whitten of Counsel for LHN, instructed by the Crown Solicitor’s Office spoke to written submissions. He confirmed that pursuant to the Subpoena issued on 4 October 2019 to B Medical Centre no objection was taken to redacted material that had been produced but only to production of the unredacted version of the material produced in compliance with the order of Registrar Paxton of 3 March 2020.

12. He submitted that the Court was bound by section 67E of the Evidence Act 1929 (SA) and referred the Court to section 79(1) of the Judiciary Act 1903 (Cth) which provides as follows:

    The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

13. He submitted that the Evidence Act 1995 (Cth) has no application to pre‑trial disclosure procedures[1] and further that a Subpoena is a form of pre-trial disclosure.[2]

    [1]Northern Territory v GPAO (1999) 196 CLR 553

    [2]Northern Territory v GPAO (supra)

14. Section 67E of the Evidence Act 1929 (SA) is in the following terms:

    67E—Certain communications to be protected by public interest immunity

    (1)A communication relating to a victim or alleged victim of a sexual offence is, if made in a therapeutic context, protected from disclosure in legal proceedings by public interest immunity.

    (2)However, the following communications are not subject to public interest immunity:

    (a)a communication made for the purposes of, or in the course of, a physical examination of the victim or alleged victim of a sexual offence by a registered medical practitioner or registered nurse; or

    (b)a communication made for the purposes of legal proceedings arising from the commission of the alleged offence or for commencing such legal proceedings; or

    (c)a communication as to which reasonable grounds exist to suspect that the communication evidences a criminal fraud, an attempt to pervert the administration of justice, perjury or another offence.

    (3)A public interest immunity arising under this section cannot be waived by—

    (a)       the counsellor or therapist; or

    (b)       a party to the protected communication; or

    (c)the victim or alleged victim of the sexual offence or the guardian of the victim or alleged victim.

15. The Objection by LHN to the production of the unredacted notes was based on the provisions of section 67F(1)(c) of the said Evidence Act, namely:

    1.Evidence of a protected communication – …

    (c)is not liable to discovery or any other form of pre-trial disclosure.

16. The Affidavit of Mr L was the only evidence relied on by LHN to support its argument that the unredacted notes produced pursuant to Subpoena by B Medical Centre were not liable to discovery or any other form of pre-trial disclosure because they contained communications relating to a victim or alleged victim of a sexual offence made in a therapeutic context, and therefore under the legislation to which I have referred were protected by public interest immunity.

17. The Affidavit was extremely vague in its terms.

18. Mr L deposed to:

    ·Being a senior psychiatrist employed by the Local Health Network;

    ·To making the Affidavit from a review of the medical records and to not having been involved in the medical treatment of the Mother;

    ·To understanding that the Affidavit is being prepared in relation to a Family Court action and in connection with a Subpoena addressed to LHN and to being authorised to respond to the Subpoena on behalf of LHN;

    ·To LHN holding documents in relation to the mental health treatment provided by LHN to the Mother which fall within the scope of the Subpoena;

    ·To the medical records including records of the assessment and treatment for Ms Sawkins’ Attention Deficit Hyperactive Disorder and Borderline Personality Disorder;

    ·To the Mother being referred to LHN for mental health treatment on 27 February 2017 after she presented at the D Hospital Emergency Department;

    ·To the Mother receiving mental health treatment from LHN between 27 February 2017 and 30 November 2017;

    ·To the medical records indicating that the Mother is a victim (or at least an alleged victim) of sexual abuse in circumstances where the medical records record her history and include in that context the acronym “CSA”;

    ·To that acronym meaning “child sexual abuse” or “childhood sexual abuse” in a medical context and to it being a recognised medical abbreviation;

    ·to the deponent being aware from his practice that the acronym was commonly used by practitioners within the LHN;

    ·To LHN requiring documents and communications arising out of assessment or treatment to be treated with the strictest confidence;

    ·To access to records prepared by LHN or to information obtained during assessments or treatments only being given to other health professionals involved in the ongoing treatment of the patient with the patients consent;

    ·To those records also perhaps being provided in limited and appropriate circumstances as prescribed by law;

    ·To that being communicated to all clients at the commencement of treatment;

    ·To medical practitioners also being subject to a duty of confidentiality in respect of material obtained during the course of their employment being a duty imposed upon them by their profession;

    ·That section 93 of the Health Care Act 2008 (SA) imposes a duty of confidentiality on health professionals employed by LHN;

    ·That the information obtained during the course of their employment must not be disclosed unless ordered to do so by a Court.

19. Mr L made no reference to medical notes of the Mother held by B Medical Centre but only referred to medical records held by LHN and in particular to records at the D Hospital that apparently have the acronym “CSA” recorded somewhere on that material.

20. Paragraphs 6 and 7 of his Affidavit would suggest that the documents relate to mental health treatment provided to the Mother between 27 February 2017 and 30 November 2017 and that it is those records that indicate the Mother is a victim or an alleged victim of sexual abuse.

21. Mr L did not identify the exact documents to which he is referring. He did not depose to where and in what context the reference to “CSA” appears on the Mother’s medical records nor does he identify dates upon which the Mother may have attended at B Medical Centre in a therapeutic context and made a communication to or had communication with a therapist relating to being the victim or alleged victim of a sexual offence. All of this information could easily have been provided by him without disclosing any part of the content of those communications.

22. As previously stated, the Mother filed no objection to the original Subpoena to D Hospital issued on 29 May 2019 either with respect to the production of documents or the inspection and copying of same and indeed, consent orders were made with respect to the later issue. No objection to production, inspection or copying was filed by LHN.

23. Annexure “F2” to the Affidavit of the Father filed 1 November 2019 are 75 pages of medical notes relating to the Mother covering the period 22 August 2016 to 10 January 2019 produced by LHN in response to a Subpoena to D Hospital issued by the Father on 29 May 2019. They are the documents referred to in paragraph 9 of the Affidavit of the Mother’s solicitor filed 28 November 2019 where she deposed that “…all mental health records in relation to the mother have already been produced…”. They were inspected and copied pursuant to a consent order made by Judge Brown on 30 August 2019.

24. It is not clear to me whether that material is the same material in respect of which the production is now opposed by LHN.

25. It is unclear as to what material the objection filed by LHN on 15 May 2020 which refers to the Subpoena directed to “The Manager, B Medical Centre, who is an employee of the Local Health Network”, is actually intended to refer to, other than that it was unredacted.

26. The written submissions as spoken to by Mr Whitten were extensive as to the provisions of the Evidence Act 1929 (SA), the Judiciary Act 1903 and the authorities relating to the provisions in particular of section 67E and section 67F(1)(c) of the Evidence Act 1929 (SA).

27. The documents however to which those arguments were addressed were not clearly identified in either the submissions of Counsel or the evidence relied on, being that contained in the Affidavit of Mr L. The matter was further complicated by the communication in the letter to the Registry from LHN dated 1 November 2019. The penultimate paragraph of that correspondence was in the following terms:

    Please note, I have been advised that B Medical Centre does not hold any record of attendance at this location for either Ms Sawkins or Z.

28. To confuse matters further, in paragraphs 12 to 14 of Mr Whitten’s written submissions he refers to the Subpoena (presumably that referred to in paragraph 1 of the written submissions being that issued to B Medical Centre on 4 October 2019) seeking medical records of the Mother.

29. He submits in paragraph 13 that subpoenaed documents produced to the Court on 24 March 2020 indicate that the Mother is a victim (or at least an alleged victim) of sexual abuse which is sufficient to place her within the class of person addressed in the relevant sections of the Evidence Act to which he referred. I have already found that I was not satisfied in that regard.

30. In paragraph 14 his submissions refer to the Mother receiving mental health treatment from LHN between 27 February 2017 and 30 November 2017 after a presentation to the Emergency Department. That period of time fits within the timeframe of the materials produced by the Local Health Network on 27 June 2019.

31. They were the documents in respect of which no objections were filed by either party or the Independent Children's Lawyer or the Crown Solicitor’s Office.

32. The documents were inspected and copied pursuant to a consent order made by Judge Brown on 30 August 2019 and annexed to the Affidavit of the Father filed 1 November 2019.

33. I am not satisfied taking these matters into account that the Notice of Objection filed 15 May 2020 is made out or that whatever documents the objection is intended to refer to are protected by public interest immunity pursuant to section 67E of the Evidence Act 1929 (SA).

34. I find that it was within the capacity of LHN to clearly identify the documents to which the objection referred, and to clearly specify the basis of the objection without identifying the contents of any such documents.

35. In those circumstances I intend to set-aside the Notice of Objection filed herein by the Local Health Network on 15 May 2020.

36. That will have the result of having any unredacted documents produced pursuant to the Subpoena issued herein to B Medical Centre on 4 October 2019 remaining in the possession of the Adelaide Registry of the Family Court of Australia. No orders have yet been made with respect to the inspection and copying of any such documents.

37. It is unclear whether those documents are different to material produced by D Hospital pursuant to Subpoena to which I have earlier referred and which has already been the subject of orders for inspection and copying. Neither party nor the Independent Children's Lawyer have made any complaint about relevant parts of that material being redacted.

38. In circumstances where I am entirely unclear as to what documents were produced to the Court on 25 March 2020 pursuant to the order of Registrar Paxton and taking into account the objection of the Mother filed herein on 28 October 2019 with respect to inspection and copying of subpoenaed material produced by B Medical Centre, it is my view that the matter would best be addressed at this stage by an order in similar terms to paragraph 7 of the order of Judge Brown of 30 August 2019 which related to documents produced earlier by LHN.

39. This will enable the Mother to identify in writing documents contained in the material produced 25 March 2020 relating to her personal medical gynaecological and obstetric documents which are not to be inspected and copied by the Father. This issue was not addressed in the order of Registrar Paxton of 21 April 2020.

40. My view is that the Independent Children's Lawyer should then inspect and where relevant copy those documents and thereafter, in the same terms as the consent order contained in paragraph 8 of the order of Registrar Paxton on 21 April 2020, forward a copy of the documents the Independent Children's Lawyer considers relevant to the proceedings to each of the parties legal representatives provided that the parties legal representatives do not print or reproduce any of the documents and further providing that the Father is not permitted to inspect the said material.

41. I consider it to be prudent to provide for those steps to be taken prior to extending orders for inspection and copying to the parties and/or their legal representatives although I am mindful that that issue will need to be addressed prior to determining paragraph 9 of the Mother’s Response to an Application in a Case filed on 12 May 2020 relating to the provision of medical records to Dr M at the F Hospital.

42. I have already referred to the basis of the Mother’s objection with respect to the inspection and copying of medical notes subpoenaed from B Medical Centre which as I have said earlier herein may or may not be the same or similar material to that produced earlier pursuant to Subpoena by D Hospital. I am satisfied that there is an issue of relevance with respect to any medical notes concerning the matters referred to in the Affidavit of the Mother’s solicitor filed 28 November 2019 in support of the Mother’s objections.

43. The remaining Notice of Objection filed by the Mother relates to the inspection and copying of material produced by C Medical Centre pursuant to Subpoena issued 4 October 2019. The reasons stated in the objection are the same as those referred to in the Affidavit of the Mother’s solicitor filed 28 November 2019.

44. By consent on 21 April 2020 Registrar Paxton made inter alia the following orders:

    (7)That in relation to the Subpoena to C Medical Centre the Independent Children's Lawyer have leave to inspect and copy the documents (except those marked confidential) produced in response to the subpoena to C Medical Centre in relation to the Mother.

    (8)That the Independent Children's Lawyer shall forward a copy of such documents as they consider are relevant to these proceedings to each of the parties legal representatives.

    PROVIDED THAT the parties legal representatives do not print or reproduce any of the documents and further PROVIDING THAT the father is not permitted to inspect the said material.

45. It was submitted by Ms Dickson on the part of the Mother that the Father subpoenaed that material to use “against the mother in a manner inappropriate” and that the Court could see the mischief that had occurred as a result of the terms of paragraphs 7 and 8 of the order of Registrar Paxton to which I have just referred.

46. The consent order was clear in its terms in providing that upon the Independent Children's Lawyer forwarding copies of any documents arising from her inspection of the C Medical Centre subpoenaed notes relating to the Mother to each of the parties legal representatives, those legal representatives were not to print or reproduce any of the documents and the Father was not permitted to inspect the said material. The Father refers to that issue with some frustration in paragraph 18 of his Affidavit filed 11 May 2020.

47. Ms Dickson submitted that some of the documents in the C Medical Centre notes had been inadvertently sent to the parties’ solicitors, that they should not have been and that the Independent Children's Lawyer had apologised. In particular Ms Dickson submitted that the contents of paragraph 62 of the Father’s Affidavit filed on 11 May 2020 referred to material that he should not have had and in respect of which there was no forensic purpose. It was her submission that the Father wanted the Mother’s confidential files to raise matters in relation to her parenting.

1. I do not accept that submission in circumstances where the consent order provided for the Independent Children's Lawyer to provide a copy of any documents produced pursuant to Subpoena by C Medical Centre that she considered relevant to the proceedings to each of the parties legal representatives but that those documents were not to be printed or reproduced or inspected by the Father.

2. There is no evidence before the Court to suggest that the Father has inspected the material, but rather paragraph 62 of his Affidavit filed on 11 May 2020 refers to information provided to him by his solicitor arising from the documents forwarded by the Independent Children's Lawyer which on his case go to the parenting capacity of the Mother. Such a situation seemed to be entirely within the contemplation of the consent order.

3. Ms Dickson further submitted that the notes included notes of psychological treatment of the Mother arising from an allegation of past sexual offences towards her by a man named in those notes. It may well be that such is the case.

4. By order dated 2 December 2019 the Mother and her solicitor were granted leave to inspect all of the materials produced by B Medical Centre and C Medical Centre. No further documents have been produced to the Court by C Medical Centre since that time. I have already referred to the confusion about what further documents were produced to the Court apparently by B Medical Centre on 25 March 2020.

5. I find that again this matter is best addressed by an order in similar terms to paragraph 7 of the order of Judge Brown of 30 August 2019 but this time with respect to the C Medical Centre.

6. That will enable the Mother to identify the documents to which she has an objection in relation to her personal medical gynaecological and obstetric documents being the basis of her objection to the inspection and copying of that material.

7. I am satisfied that she should also be able to identify in the same manner any material contained in those documents that relates to psychological treatment she may have sought or been given specifically with respect to the alleged sexual assault at her workplace in December 2018. She deposed in paragraph 67 of her Affidavit filed 21 February 2020 to consulting a psychologist at the C Medical Centre in relation to that sexual assault.

8. The Independent Children's Lawyer has already inspected that material pursuant to the terms of paragraph 7 of the consent order made by Registrar Paxton on 21 April 2020.

9. The parties in this matter are in high conflict as to appropriate parenting arrangements for their child Z who is only five and a half years old.

10. It is apparent from material already filed herein that both parties have a long history of serious and significant challenges with respect to their own respective abilities to live settled and stable lives.

11. It is hard to see how that history and the parties’ capacity to admit and manage those challenges would not be highly relevant to their parenting capacity.

12. Z’s best interests are hardly likely to be met by a continuation of the animosity that currently appears to be exhibited by each of the parents to the other of them.

13. On 24 January 2020 the Father filed an Application in a Case and on 11 May 2020 he filed an Amended Application in a Case.

14. The Mother filed a Response to the initial Application in a Case on 21 February 2020 and a further Response on 13 May 2020.

15. Those interim Applications remain outstanding.

16. For these reasons I make the orders as set out at the commencement of these reasons for judgment.

I certify that the preceding ninety-eight (98) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Mead delivered on 12 August 2020.

Associate:

Date: 12 August 2020