Application of Director-General, Department of Family and Community Services; Re BS [2013] NSWSC 1238

Supreme Court New South Wales

Medium Neutral Citation: Application of Director-General, Department of Family and Community Services; Re BS [2013] NSWSC 1238 Hearing dates: Thursday 15 August 2013 Decision date: 15 August 2013 Jurisdiction: Equity Division - Adoption List Before: Brereton J Decision: Grant access to documents produced on subpoena limited to the legal representatives of each party Catchwords: PROCEDURE - subpoenas - whether material relevant ADOPTION - whether material constituted communication Legislation Cited: (NSW) Evidence Act 1995, s 126B (NSW) Children and Young Persons (Care And Protection) Act 1998 Category: Procedural and other rulings Parties: Director-General, Family and Community Services (applicant) CS (first defendant) TF (second defendant) Representation: Counsel: Mr J Harris (applicant - solicitor) Ms S Leis (first defendant) TF (second defendant - in person) Solicitors: Crown Solicitor's Office (applicant) Tony Cullinan Lawyers (first defendant) File Number(s): A162/2012

Judgment (EX Tempore) 1HIS HONOUR: The Director-General has issued subpoenas for production to Peak Valley Medical Centre, Canning Street Surgery at Peak Hill, the NSW Trustee and Guardian, Katungal Aboriginal Corporation Community and Medical Services, Medicare, Penrith Community Mental Health Service and Nepean Hospital for production of documents. Each of those entities has produced documents. Neither the recipient of each subpoena, nor either defendant, has made any application to set aside any of the subpoenas. However, the first defendant objects to access being granted to the documents produced, and is supported in that objection by the second defendant. 2The proceedings are listed for hearing next week. In the proceedings the first defendant opposes an adoption order, essentially on the basis that there is already in place adequate permanent arrangements in respect of the child under the (NSW) Children and Young Persons (Care and Protection) Act 1998. She does not in these proceedings contend that restoration of the child to her care is a present possibility, although she expresses some wish for that to occur in the future. She says by her counsel today that, so far as her contact with the child is concerned in these proceedings, she will be seeking no more then supervised contact. 3The second defendant TF has not at this stage filed any evidence, and it is not entirely clear what position he will contend for at the hearing, though I can infer, from what he has said today, that he will oppose an adoption order. At an earlier stage in the proceedings he indicated that he was giving some thought to the question of restoration, but it is not clear what position he will take in that regard at this stage. 4One of the agreed issues in the list of issues is the parenting capacity of the defendants. Prima facie, the physical and mental health of each defendant is relevant to that defendant's parenting capacity. That is so in respect of contact, as well as in respect of any possibility of restoration in the future. The nature and extent of any contact, and the type of supervision, might well be affected by knowledge as to the physical and mental health of either birth parent. 5It is convenient to deal with the subpoenas. At least as the proceedings are presently framed, and at least in the absence of categorical concessions about the physical and mental health of each defendant, it cannot be said that evidence that would touch on the physical or mental health is irrelevant. That is not the end of the case or the argument because, notwithstanding relevance, the court has a discretion under the (NSW) Evidence Act 1995, s 126B, to exclude evidence of protected confidences. It is important to recognise that, although it appears under the heading "Professional confidential relationship privilege", this is not a privilege in the strict sense, but confers a discretion on the court to exclude such evidence having regard to a number of relevant factors. 6The conclusion I have reached concerning relevance, coupled with the fact that each recipient has produced documents without objection, answers any argument that the subpoenas were oppressive. In short, it was "on the cards" that the documents, production of which was sought, would add in some way to the evidence in the case by casting light on the physical and/or mental health of parents whose parenting capacity is an issue in the proceedings. The scope of the subpoenas, though in some cases wide, was not so wide as to cast a particularly onerous burden on any recipient. That, however, leaves the question of potentially excluding evidence of a protected confidence. 7It is useful to deal with the subpoenas in a number of categories. First, the subpoena addressed to the NSW Trustee and Guardian. It seeks production of financial and/or guardianship orders relevant to the first defendant, medical or psychiatric assessment of her, and records of proceedings of the Guardianship Tribunal regarding her. None of those constitute a communication made by Miss S in confidence to another person. To the contrary, they are orders of tribunals, assessments of her made by other persons, and records of proceedings in a tribunal. None of those matters appears to fall within the definition of a protected confidence, and I do not consider that the subpoena to the NSW Trustee and Guardian, prima facie, calls for documents which would be protected confidences at all. That is not to say that, inspection having taken place, it may not appear that there is a protected confidence; if so, an application can then be made that evidence of the particular communication not be adduced. 8Secondly, the subpoena to Medicare seeks production of the defendants' records and history and pharmaceutical scheme records pertinent to each defendant. Those records are not communications by either defendant to another person in the course of a professional relationship within the definition of protected confidence, and no question in respect of the protected confidences arises in respect of them. 9The remaining subpoenas fall within a different category, and it is at least conceivable that amongst the documents caught by those subpoenas will be some protected confidences, although it is almost inevitable that the documents caught by the subpoena would also contain observations and records of medical practices, other than communications made to them by Miss S, which would not fall within the category of protected confidences. In other words, it simply cannot be concluded that all, or even most, of the documents produced under the subpoenas are protected confidences, though some of them may well be. 10At this stage of the proceedings it is relevant to take into account that the documents are not yet being tendered in evidence, that inspection can be limited to legal practitioners, that it remains open to make a further application in respect of any particular communication that evidence of it not be adduced; that in any event the proceedings will take place in a closed court and be subject to a non-publication provision; that ultimately the court is concerned with the interests of the child as the paramount consideration, and it is desirable that all relevant evidence be before the court for that purpose, that though the court is asked to draw inferences, there is no evidence that harm would, or might, be caused to either defendant if the evidence were adduced, essentially bearing in mind that, as I have said, the proceedings will be conducted in a closed court and subject to non-publication orders; and, of course, there is the implied undertaking given by a party subpoenaing documents to use them only for the proper purposes of the proceedings. 11While I accept that the possibility of future restoration does not seem at this stage to loom large, and while counsel for the first defendant has sought to play it down as an issue today, it is clear to me that, quite properly, she is unable to abandon it as something that may have some relevance in the proceedings. In any event, as I have said, so long as it remains the case that the parenting capacity of the defendants is an issue, then their mental and physical health must form part of that. 12For those reasons, it seems to me, access should be granted to the documents produced on subpoena limited to the legal representatives of each party. The defendants may have first access if they wish in order to identify any particular documents in respect of which they might wish to make any further application. 13Having confirmed that the defendants wish to have first access, I grant access to the defendants forthwith. The plaintiff may have access, by counsel or solicitor only from 9.00 am on Monday 19 August 2013.