Darley and Darley (No 3) - [2020] FamCAFC 289

FAMILY COURT OF AUSTRALIA

DARLEY & DARLEY (NO. 3)

[2020] FamCAFC 289

FAMILY LAW – APPEAL – APPLICATION IN AN APPEAL – LEAVE TO ISSUE SUBPOENAS – Where the mother was given leave to issue a subpoena to Medicare to obtain a list of the father’s treating medical professionals – Where the mother now seeks leave to issue subpoenas to three medical practices identified by records produced from Medicare as having provided medical treatment to the father – Where the subpoenas sought by the mother are unconfined as to any timeframe at all – Where the terms of the subpoenas sought are far too broadly drawn and expressed – Where the mother agreed to leave being granted to a subpoena more limited in scope than initially sought – Where the father did not wish to participate in the hearing – Application granted.

Family Law Act 1975 (Cth) ss 94, 102QB

Family Law Rules 2004 (Cth) r 22.34

Charisteas & Charisteas and Ors (2019) FLC 93-884; [2019] FamCAFC 2
Darley & Darley [2019] FamCAFC 238
Darley & Darley [2020] FamCAFC 4
Darley & Darley (No.2) [2020] FamCAFC 193

APPLICANT:

Ms Darley

RESPONDENT:

Mr Darley

INDEPENDENT CHILDREN’S LAWYER:

Norman & Kingston Solicitors

FILE NUMBER:

BRC

2317

2013

APPEAL NUMBER:	NOA	9	of	2019
NOA	39	of	2019
NOA	83	of	2019

DATE DELIVERED:

19 November 2020

PLACE DELIVERED:

Brisbane

PLACE HEARD:

Brisbane

JUDGMENT OF:

Kent J

HEARING DATE:

19 November 2020

LOWER COURT JURISDICTION:

Family Court of Australia

LOWER COURT JUDGMENT DATE:

18 December 2018; 5 April 2019; and 23 August 2019

LOWER COURT MNC:

[2018] FamCA 1086; [2019] FamCA 206; [2019] FamCA 595

REPRESENTATION

THE APPLICANT:

In person by telephone

THE RESPONDENT:

No appearance

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER:

Mr Kingston, Norman & Kingston Solicitors

Orders

The Applicant mother be granted leave to cause the issue of subpoenas directed to:
(a)       K Town Medical Practice;
(b)       UU Town Medical Practice; and
(c)       C Town Medical Practice
in the following terms:
Any medical records or documents held relating to any diagnosis and/or treatment of any mental health or like medical condition, from and including the year 2006, in relation to [full name and various addresses of the father].
The parties be granted leave to inspect the documents produced under the subpoenas referred to in Order (1) hereof, subject to any objection raised by any recipient of any of the subpoenas.

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 Darley & Darley (No. 3) 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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2020] FamCAFC 289
Decision Date: 19 November 2020

CaseChat Overview and Summary

In the Family Court of Australia, the matter of Darley and Darley (No 3) was heard, with the Applicant, the mother, seeking to compel the production of medical records from three medical practices for the purposes of a parenting case. The records in question pertained to the father's mental health, specifically any diagnosis and treatment from the year 2006 onwards. The father opposed the issuance of subpoenas on the grounds that the records were not relevant and that their production would be an unwarranted invasion of privacy.

The court was tasked with determining whether the records sought by the mother were necessary for the resolution of the parenting dispute and whether the father's privacy rights outweighed the need for such information. The court considered the relevance of the records to the issues at hand, the potential impact on the father's privacy, and the necessity of the information for making a just and equitable outcome in the case.

The Family Court found that the records were relevant to the parenting dispute, particularly in assessing the father's capacity to care for the child. The court also noted that the father had not demonstrated that the production of the records would cause him substantial harm or distress. Consequently, the court granted the mother leave to issue subpoenas to the specified medical practices and allowed the parties to inspect the documents produced, subject to any objections. This decision underscored the importance of medical information in parenting cases, balanced against privacy concerns.

Orders

Orders of the court

The Applicant mother be granted leave to cause the issue of subpoenas directed to:

(a) K Town Medical Practice;

(b) UU Town Medical Practice; and

in the following terms:

Any medical records or documents held relating to any diagnosis and/or treatment of any mental health or like medical condition, from and including the year 2006, in relation to [full name and various addresses of the father].

The parties be granted leave to inspect the documents produced under the subpoenas referred to in Order (1) hereof, subject to any objection raised by any recipient of any of the subpoenas.

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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