Buckner v Crane [2020] NZFC 11545

Published 30 April 2021

Parenting order application — discovery after commencement of proceedings — psychiatric medical records — privacy considerations — confidentiality — public interest — fitness to care for child — welfare and best interests — Care of Children Act 2004, ss 129 & 133 — Evidence Act 2006, s 69 — Family Court Rules 2002, r 141 — Health Insurance Portability and Accountability Act 1996 (US) — M v DB FC North Shore, FAM 2009-044-726, 30 April 2010 — Compagnie Financiere Commerciale Du Pasifique v Peruvian Guano Company 1882 11 QBD 55 — OA v BGDI FC Auckland FAM 2007-044-2096, 19 November 2010. The applicant father applied for a parenting order under the Care of Children Act ("COCA") for the purposes of seeing the parties' child more regularly. This hearing was to determine a cross-application by the respondent mother, who was self-represented, for an order of discovery of the applicant's psychiatric medical records from when he was living in the United States. She submitted that she was uncertain as to his ability to care for the child due to his past mental health, claiming he had a diagnosis of PTSD. There is no general right of discovery in the Family Court. Pursuant to r 141 of the Family Court Rules 2002, the onus of proving the necessity of the documents lies with the person seeking discovery. As the documents sought were medical records, the issue of confidentiality arose pursuant to s 69 of the Evidence Act. In COCA proceedings, the welfare and best interests of the child is paramount. The lawyer for child was in support of the application due to the allegations regarding the applicant's mental health; however, the historical nature of the medical records meant that they may not be entirely useful. The Judge noted that in cases involving medical records, the confidentiality of the records must be weighed against the public interest of disclosure. It was unfortunate that the applicant's doctor had not been served with the discovery application nor contacted for comment; however this was not fatal to the respondent's application. The Judge considered that the s 69 balancing test fell in favour of disclosure: the matters were relevant and probative to the issue at hand. The Judge granted the application and made an order for the disclosure of the records, but limited it to the respondent being able to view the document stating whether the applicant had PTSD and whether he was taking the antidepressant SSRI, and the impact on him. The respondent was not to share the information with anyone else or use it outside of the proceedings. Judgment Date: 23 December 2020. * * * Note: names have been changed to comply with legal requirements. * * *