Knill and Beckett

[2019] FamCA 591

FAMILY COURT OF AUSTRALIA

KNILL & BECKETT [2019] FamCA 591

FAMILY LAW – PRACTICE AND PROCEDURE

A v Z [2007] NSWSC 899
Brand v Digi-tech Australia [2001] NSWSC 425

APPLICANT: Mr Knill

RESPONDENT: Ms Beckett

INDEPENDENT CHILDREN’S LAWYER: Mills Oakley

FILE NUMBER: CAC 712 of 2016

DATE DELIVERED: 22 August 2019

PLACE DELIVERED: Canberra

PLACE HEARD: Canberra

JUDGMENT OF: Gill J

HEARING DATE: 22 August 2019

REPRESENTATION

COUNSEL FOR THE APPLICANT: Mr Howard

SOLICITOR FOR THE APPLICANT: Neilan Stramandinoli Family Law

COUNSEL FOR THE RESPONDENT: Mr Haddock

SOLICITOR FOR THE RESPONDENT: Phelps Reid

SOLICITOR FOR THE INDEPENDENT CHILDREN’S LAWYER: Mrs Evans

Orders

1. The Father may access immediate access to the material produced on subpoena by the Suburb C Family Practice in relation to the subpoena issued on 29 July 2019 and absent any further application the Independent Children’s Lawyer and the Mother may exercise access to that material (other than material in the envelope marked “not to be opened without further order of the Court”) from 11 am today.

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  Knill & Beckett 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 Family Law Rules 2004 (Cth).

FAMILY COURT OF AUSTRALIA AT CANBERRA

FILE NUMBER: CAC 712 of 2016

Mr Knill

Applicant

And

Ms Beckett

Respondent

EX TEMPORE REASONS FOR JUDGMENT

1. This matter concerns a subpoena directed to the Suburb C Family Practice filed on 29 July 2019.  That subpoena was directed to any medical records held by that practice in relation to the child the subject of proceedings B, her Father who attends that practice and her Mother who does not attend that practice. 

2. Notice of Objection was filed by the Father on 9 August 2019, which was before the subpoena was returnable, being returnable on 12 August 2019.  The parties argued their objection before the Registrar on 19 August 2019.  She then made orders which provided initially for the Independent Children’s Lawyer to inspect the material and to extract matters which she indicated were relevant. 

3. The Father promptly, by an Application in a Case on 21 August 2019, sought a review of the Registrar's decision.  The character of that review is that it is a fresh determination of the matter.  A partial stay of the orders was granted on 21 August 2019. 

4. Two objections were mounted by the Father.  The first is that the material produced by the Suburb C Family Practice went beyond the scope of the subpoena.  The subpoena sought material generally from the ending of the substantive trial in this matter, being from 12 October 2018 to date.  I am advised that material incorporating the Father's medical records dating back to 2002 has been produced.  With the agreement of each of the parties a procedural step was then directed whereby the Father’s solicitor was authorised to remove from the produced material any material that has been produced which predates 12 October 2018, such that that material is to be placed upon an envelope on the Court file marked “not to be opened without further direction of the Court”.  That has, for the time being, dealt with that first aspect of the objection.  Whether that is a matter that requires further argument will be a matter to be determined in due course, but will not be necessary to be determined unless access is sought to that material. 

5. The second aspect related generally to the production of the Father's medical records, which would necessarily touch upon a large component of that which was also dealt with in the first part of the objection.  Correspondence between the Independent Children’s Lawyer and the Father indicated that the Independent Children’s Lawyer had cast the subpoena such as to deal with the Father's and the Mother's medical records, again noting the Mother does not attend that practice, so as to deal with the production of evidence relevant to the manner in which each of the parties may have conducted themselves with respect to that practice with respect to medical issues involving B.

6. This is a relevant matter as these proceedings are before me on the basis of the Mother's Application in a Case which seeks to alter the arrangements for parental responsibility in relation to medical treatment for B.  The basis disclosed by the Independent Children’s Lawyer for the subpoena was directly on point in so far as it was directed to conduct by each of the parties’ towards the medical practice in relation to B.  While the Application remained only in relation to that matter it would have been difficult to see that the Father's medical records in a more general sense were also relevant. 

7. It should be observed, however, that the Father has subsequently made an Application to the Court seeking to extend his time with B in the interim.  The key objection made by the Father then was as to one of relevance.  He made this objection on the basis that he says that there are no issues in relation to the interlocutory proceedings relating to his medical or mental health and that this thereby constitutes some sort of fishing expedition.  In support of this contention he points to the Mother's affidavit material which responds to his Application in a Case, which is confined to the assertion that a change to, or consideration of a change to, the arrangements concerning B pending the delivery of the substantive judgment is not appropriate. 

8. The issue then falls to be determined on the question of relevance.  I was assisted by reference to a decision of Justice Brereton of the New South Wales Supreme Court in A v Z[1].  There Justice Brereton dealt with the concept of relevance as it might pertain generally to the issuing of subpoenas.  In doing so he determined that he would adopt what had been said by Justice Hunter in the case of Brand v Digi-tech Australia[2] in [36] when Justice Hunter said

   I think it is indisputable that, if the subpoenaed documents are by their description arguably relevant or capable of providing a legitimate basis for cross examination on credit matters, then an application to set aside a subpoena on the grounds of irrelevance of the documents to the proceedings is misconceived. It is equally clear, in my view, that, if the description of the documents is such as to admit of a finding that the documents are manifestly irrelevant and incapable of touching matters of credit, then the issuing of such a subpoena represents an abuse of process.

   [1]A v Z [2007] NSWSC 899

   [2]Brand v Digi-tech Australia[2001] NSWSC 425

9. His Honour then went on to say

   Accordingly, I would approach the question primarily on the basis of asking whether, on the one hand, the documents called for are apparently relevant or capable of providing a legitimate basis for cross-examination, in which case there is a legitimate forensic purpose for the issue of subpoena, or whether on the other, they are manifestly irrelevant and incapable of touching matters of credit, in which case the subpoena would be an abuse of process.

10. By way of example his Honour pointed to the question of a medical negligence case where he said [18]

    In a medical negligence case, for example, one cannot know in advance whether the doctor’s and hospital’s notes are likely to assist one party or the other, but no-one could suggest that there would be no legitimate forensic purpose in issuing a subpoena for their production.

11. His Honour also said [4]

    There is no doubt that, at the least, a subpoena is not issued for a legitimate forensic purpose unless there is a reasonable basis for supposing that the material called for will likely add, in the end, in some way or another, to the relevant evidence in the case … or could possibly throw light on the issues in the case… .

12. It may be observed that the various articulations of the test posed by Justice Brereton was in a broad sense, in their understanding of relevance and the issuing of a subpoena, being so broad as to ask the question about whether or not the material could possibly throw light on the issues in the case. 

13. While this case was solely an issue about the medical arrangements for treatment of the child B I would be unable to see how the Father's medical records could be relevant to that issue.  The interim issues, however, have expanded by virtue of the Father's Application in a Case and that he seeks to increase his time with B.

14. The Mother in answering that points to the issues at large in the substantive proceedings by her response in her affidavit.  Within those substantive proceedings, which were directed in part to the living arrangements for B, the parties together identified a list of issues to be dealt with, providing those issues to the Court prior to the commencement of the trial.  One of those issues was the Father's and Mother's mental health and whether that poses a risk to B.  The class of documents which was sought from the Suburb C Family Practice, being the medical records of the Father are, on their face, apparently relevant to the question of the Father's parental capacity or mental health.  In saying that they are apparently relevant to that, they are apparently relevant to that in either direction as was articulated by Justice Brereton in posing an example of the medical negligence case.  That is, they can speak to the proposition one would expect of whether or not there is any mental health issue or capacity issue in respect of the Father and B both in the positive in answering that question, or in the negative. 

15. In that sense they pass the relevance test in the sense identified by Justice Brereton.  It is on the cards that the records will illuminate the question of capacity and in that description they fail to meet the description of being a mere fishing expedition.  On that basis I decline to strike out the subpoena in so far as it relates to the Father's medical records and I reserve the question on the records that were produced prior to the date indicated on subpoena until that matter is further argued by the parties or the proceedings are brought to an end.

16. The Father may access immediate access to the material produced on subpoena by the Suburb C Family Practice in relation to the subpoena issued on 29 July 2019 and absent any further application the Independent Children’s Lawyer and the Mother may exercise access to that material (other than material in the envelope marked “not to be opened without further order of the Court) from 11am today.

I certify that the preceding sixteen (16) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Gill delivered on 22 August 2019.

Associate: 

Date:  22 August 2019