Wakelin and Kroger

[2017] FCCA 2687

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAKELIN & KROGER [2017] FCCA 2687

Catchwords:
FAMILY LAW – Practice and procedure – subpoena – therapeutic relationships as between patients and medical practitioners.

Legislation:

Evidence Act 1995 (NSW), s.126B

Family Law Act 1975, s.60CA
Federal Circuit Court Rules 2001

Cases cited:
Benson & Hughes[1994] FamCA 30; (1994) FLC 92-483
Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52
Jones & Dunkel (1959) 101 CLR 298

Other Articles Cited:

Finkelstein, Ray, The Adversarial System and the Search For Truth, Monash University Law Review, Vol.37, No.1, 2011
RANZCP Position Statement 89: Patient – Psychiatrist Confidentiality: the issue of subpoenas, The Royal Australian New Zealand College of Psychiatrists, 11 May 2017

Applicant: MR WAKELIN

Respondent: MS KROGER

File Number: WOC 244 of 2016

Judgment of: Judge Harman

Hearing date: 16 October 2017

Date of Last Submission: 16 October 2017

Delivered at: Wollongong

Delivered on: 16 October 2017

REPRESENTATION

Solicitors for the Applicant: Ms Koot of Access Law Group

Solicitors for the Respondent: Mr Williamson of Acorn Lawyers

ORDERS

1. The Respondent shall provide to the Applicant by close of business 20 October 2017, details of all medical practitioners (whether general practitioners, psychologists, psychiatrists or similarly qualified professionals) upon whom she has attended for the purpose of mental health treatment or assistance as referred to in her Affidavit sworn or affirmed 3 May 2017.

2. Upon receipt of the above information, the solicitors for the Applicant shall be entitled to cause issue for the production of documents to be issued to such of those practitioners as they believe necessary and appropriate to conduct the Applicant’s case and provided however:

   (a)Upon a Notice of Request to Inspect being filed, leave shall extend only to the legal practitioners for the parties and the mother (the documents produced being the mother’s medical records);

   (b)The solicitors for the Respondent shall have a right of first inspection such right of first inspection to be for a period of 7 days following the filing of the Notice of Request to Inspect and thereafter and absent any Application in a Case having been filed by the Respondent with respect to further limitation to access, the Applicant’s legal representatives shall be entitled to inspect that material;

   (c)The records shall not be copied by any person.

IT IS NOTED that publication of this judgment under the pseudonym Wakelin & Kroger is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT WOLLONGONG

WOC 244 of 2016

MR WAKELIN

Applicant

And

MS KROGER

Respondent

REASONS FOR JUDGMENT

1. These proceedings come before the Court in response to an oral Application following relisting in accordance with leave previously granted. 

2. The issue in dispute between the parties on this occasion is the provision or non-provision of certain particulars that would enable the issue of subpoena for the production of documents.  Those subpoenas relate to the mother’s mental health treatment past and present. 

3. The parties to the proceedings are the mother and father of a young child.  The matter is listed for hearing some weeks hence and was previously been listed for hearing on an earlier date but not reached on that occasion. The subject matter of the substantive proceedings are further arrangements for a young child.  The father seeks Orders to spend regular and consistent periods of time with the child.  The mother resists any Order that would permit the father and child to interact.

4. The mother’s material filed in the substantive proceedings, comprising her Affidavit sworn or affirmed 3 May 2017, raises a number of issues with respect to her own mental health.  It is true to say, as is observed and submitted by Counsel for the mother, that there is no issue in these proceedings as to the mother’s parental capacity as regards her having been and continuing to be a predominant caregiver for this child.  The father’s Application seeks that the child continues to live with the mother.  The only issue is whether the child will spend time with the father.  The issue is raised in those terms.  This case will involve not a determination of the time the child will spend with the father but whether any time at all will be spent.

5. There may well be any number of bases upon which the mother advances her position that there should be no time between the father and the child. Certainly, it is common ground that the child was conceived from a brief and somewhat tempestuous relationship. The mother, prior to that relationship, had been diagnosed with respect to certain mental health conditions which need not be enumerated at this time. The mother has received treatment with respect to those conditions. 

6. A portion of the mother’s case, at the very least, (commencing at paragraph 42 of her Affidavit under the heading “Managing shared Parenting”), would appear to be the suggestion, albeit that it is on her evidence rather than evidence from a qualified medical practitioner, that she is unable to deal with the father, whose attitude and behaviour towards her, she suggests, is less than conducive to her emotional or psychological health, wellbeing and stability.

7. The mother refers to a number of diagnoses, interventions and treatments as regards her mental health and involving a number of treating professionals, although she is unspecific as to those upon whom she has attended. That is no criticism of her.  It is simply the reality of the Affidavit. Given that absence of detail, however, the father has sought certain particulars with respect to the details of the mother’s “treating doctors, medical practitioners and psychologists” so that subpoena for the production of documents might be issued to those persons. 

8. I am conscious that interference in therapeutic relationships as between patients and medical practitioners is a serious step to be taken in any proceedings, serious to the extent that significant discussion papers have been prepared by professional associations of psychologists and psychiatrists regarding that very issue.[1]  Whilst I am conscious of and cautious to protect such confidential and therapeutic relationships, they are not protected relationships in that there is an absence of recognition in Australian law, Federal or State, of patient-doctor communication privilege[2] as a category of protected relationship or evidential privilege.

   [1] RANZCP Position Statement 89: Patient – Psychiatrist Confidentiality: the issue of subpoenas, The Royal Australian New Zealand College of Psychiatrists, 11 May 2017.

   [2] Save, perhaps, section 126B of the Evidence Act 1995 (NSW) as regards the records of sexual assault counsellors, although even that privilege is narrow and limited and subject to exceptions.

9. However, that must also give way, as observed, for example, by Chisholm J [3] to the need for the Court, when dealing with a child’s best interests, to get to the facts as best as can be done, bearing in mind criticisms, for example, of Finkelstein J writing in extra-curial capacity as to the ability of any Court to do so.[4] 

   [3] Benson & Hughes[1994] FamCA 30; (1994) FLC 92-483 citing Baker v Campbell [1983] HCA 39; (1983) 153 CLR 52 at 66 per Gibbs CJ.

   [4] Finkelstein, Ray, The Adversarial System and the Search For Truth, Monash University Law Review, Vol.37, No.1, 2011.

10. In this case, and on the basis that the mother’s case is, at least in some small part, founded in the suggestion that it would seriously impact upon her mental health and capacity to care for herself and the child, practically and physically, if the father were spending time with the child, it would seem that the issue is, at the very least, prima facie relevant.  It must be so on the basis that the mother is the person who has sought to introduce that evidence.  In those circumstances, there is an issue of procedural fairness or due process. 

11. The father is entitled to test the mother’s evidence and to challenge the contentions raised by the mother. In those circumstances, I am satisfied that the material can and should be available.  Certainly, it is true, again as is observed appropriately and pointedly by Counsel for the mother, that on the prior occasion that these proceedings were listed for trial (and not reached) that no such request had been made.  However, the reality is that the proceedings are now listed for hearing some six weeks hence and, in preparation for that trial, the father is entitled to information that will allow him to prepare and conduct his case as he sees fit.

12. The mother does not submit that the father having access to information that will allow him to issue subpoena to the mother’s treaters or to access to material regarding her mental health treatment will impact her health, interfere in her engagement with her treaters or preclude or interfere with her treatment. If it were alleged that the mother’s ability to care for herself or the child were impacted by disclosure of this information, then the child’s best interests as the paramount consideration pursuant to section 60CA of the Family Law Act 1975 might be invoked as a consideration contrary to the provision or more limited provision of information. However, absent such evidence the child’s best interests compels that due process be afforded to both parents and that all available evidence regarding the determination of the child’s best interests be available and able to be tested.

13. The mother’s arguments are that the request is made late in the day and that the material is irrelevant in circumstances wherein there is no issue that the child will continue to live with the mother.

14. The material is relevant.  It is the mother who introduces the issue of her mental health as relevant and on the basis of the mother’s assertion that her mental health will be impacted by any dealings with the father as would be required to “Manage shared Parenting” (as the mother describes it – although the sharing of care, even if the father is successful, will be disproportionate and the mother will continue with a predominance of care).  The father is entitled to fully and properly challenge the mother on those matters. The father requires this information to make further enquiry by way of subpoena before he can do so.

15. Whether the request is made late is no barrier in this case.  The request for information will not, save through this relisting, caused by the mother’s refusal to provide the necessary information, give rise to any greater complexity in the proceedings nor will it increase cost.  The obligation of full and frank disclosure applies in parenting cases and the disclosure of this information falls within that duty.  The mother suggests that certain unspecified health professionals have offered opinion and treatment to the mother that is relevant to the issues to be determined. That material is, at least inferentially, suggested to corroborate the mother.[5]  The father is entitled to know the details of those persons and obtain their records so as to conduct his case and challenge the mother’s evidence.  That is so whether the request is delayed or not.

    [5] Such that the mother’s failure to adduce that evidence may support the drawing of an adverse inference against her per Jones & Dunkel (1959) 101 CLR 298.

16. Access to any material produced of such a sensitive nature and in accordance with the Federal Circuit Court Rules 2001 should be confined to the legal representatives for the parties.  I propose to make an Order prospectively, although a Notice of Request to Inspect will still need to be filed, to confine access to the legal representatives for the parties and the mother (the records are, after all, her health records).  It may be that those with whom the mother is engaged for medical care and treatment may prefer that she not view those records, but she is entitled to do so and if there is any prospect that those records or any portion of them might be used in cross-examination or tendered, the mother’s right to due process requires that she be able to inspect her own records.

17. Such documents as might be produced cannot, consistent with the Federal Circuit Court Rules 2001, be copied without the Court’s leave.  Such leave would not likely be granted. No such Application is presently made and one would anticipate that such a request need not be made as the documents would be held at the Registry for practitioners who practice proximate to the Registry. 

18. As the particulars sought would bring to light potentially relevant evidence, I am satisfied that the interests of justice and the requirements of due process determine in the affirmative the issue presented and, accordingly, Orders are made as set out above.

I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of Judge Harman.

Date: 3 November 2017