Supreme Court New South Wales Medium Neutral Citation: Adoption of AT [2015] NSWSC 1995 Hearing dates: 9 April 2015 Date of orders: 09 April 2015 Decision date: 09 April 2015 Jurisdiction: Equity - Adoptions List Before: Brereton J Decision: Access to documents granted. Catchwords: EVIDENCE – access to documents – relevance – where relevant to parenting capacity of proposed adoptive parents. EVIDENCE – access to documents containing protected confidences under (NSW) Evidence Act 1995, s 126A – whether harm caused by disclosure of protected confidences outweighs desirability of evidence being given – where evidence bears on welfare of child the subject of proposed adoption order – where steps available to minimise harm of disclosing protected confidences – held, access to documents granted. Legislation Cited: (NSW) Evidence Act 1995, s 126A, 126B Cases Cited: Director-General, Dept of Community Services v D [2006] NSWSC 827; (2006) 66 NSWLR 582 Category: Procedural and other rulings Parties: Secretary, Department of Family and Community Services by his delegate, Principal Officer, Adoptions, Barnardos Australia (plaintiff) Representation: Counsel: S Christie (plaintiff) S A Gardiner (natural mother) G Winn (natural father) Solicitors: Crown Solicitor (plaintiff) V L Hall Lawyer (natural mother) WinnLegal (natural father) File Number(s): A57/2014 Judgment (ex tempore) 1. HIS HONOUR: Glen John Cameron is a counsellor and has provided an affidavit of referee which has been read in the plaintiff's case attesting to the fitness of the proposed adoptive parents. In the course of his cross-examination this morning, which was conducted by telephone, he confirmed, as had earlier emerged in the evidence, that he had also acted as a counsellor for the proposed adoptive mother and had a therapeutic relationship with her. He said that he had notes of his consultations with her. He was asked to produce those notes, and he has electronically produced them to the Court. First access was granted to the plaintiff. The first defendant now seeks access, and the plaintiff seeks a direction under (NSW) Evidence Act 1995, s 126B, in respect of at least part of those notes. 2. Although at the outset of these proceedings it did not seem that the parenting capacity of the proposed adoptive parents was a matter seriously in issue, it cannot be said that it has ever ceased to be an issue, and the list of issues settled at the preliminary hearing included, as paragraph 4.5, "the suitability and capacity of each proposed adoptive parent to provide for the needs of the child, including his emotional, intellectual and cultural needs". 1. Accordingly, it cannot be said that their parenting capacity is not an issue in the proceedings, even if it has not seemed to be a central one. 2. The material produced is admittedly from the period August 2008 to March 2009, and is in that sense temporally remote from the present. That said, the Court is in the middle of hearing cross-examination of the birth parents about matters which happened in the same sort of timeframe. While the time that has passed may well affect the importance of the matters contained in the notes, it does not deprive them of potential relevance. 3. Some of the matters recorded go directly to questions of parenting capacity. Others may found cross-examination of Mr Cameron on the matters deposed to in his affidavit of referee. Other aspects raise other potential issues. The particular part of the entry for 26 November 2008 to which the plaintiff has specifically drawn attention cannot be said to be irrelevant to the experience and attitudes that the proposed adoptive mother may bring to her role as a parent. There is no doubt that the material is relevant in the adjectival sense that is applicable when one considers the question of production of documents and access to documents. 4. There is also no doubt that the contents of the material produced comprise protected confidences within the meaning of Evidence Act, s 126A. In that context, the central question for the Court – whether one regards subsection (3) as imposing a test that must be applied in any case, or whether one considers that there is a wider discretion under subsection (1) of s 126B – is whether the nature or the extent of the harm that may be caused by disclosure of the protected confidences outweighs the desirability of the evidence being given. 5. This question arose for consideration in Director-General, Dept of Community Services v D [2006] NSWSC 827; (2006) 66 NSWLR 582, where a birth mother sought to rely on protected confidence privilege under s 126B, which was opposed by the Director-General, who sought production. I said (at [22]) that a significant factor making it desirable that the evidence be given was that: At stake in these proceedings is the welfare of a child, and the importance of the court having relevant evidence bearing on that matter outweighs the interest of a party in a protected confidence. 1. I also took into account (at [24]) that the hearing in which it was sought to adduce the confidences was one that was required to be in camera; and in respect of which access to Court records was limited and publication of certain matters was prohibited, so that the confidential nature of the proceedings would, in any event, minimise dissemination of the confidences. 2. The same applies of course in the present proceedings. It seems to me that sufficient steps can be taken by, if necessary, limiting access to the lawyers in the first place and subsequently – if this material is to be adverted to in court any further – revisiting the leave that has been granted to persons other than the parties to be present while that evidence is given, such that the consequences can be minimised. 3. I grant access to the documents produced by Mr Cameron to the first defendant and the second defendant upon terms that such access be limited to counsel and solicitors for those parties in the first instance. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 January 2016