M and D - [2003] FMCAfam 354

FEDERAL MAGISTRATES COURT OF AUSTRALIA

M & D

[2003] FMCAfam 354

FAMILY LAW – PRACTICE AND PROCEDURE – Objection to providing medical records in answer to subpoena – relevance.

Applicant:

R G

Respondent:

D D

File No:

NCM 5657 of 2002

Delivered on:

20 August 2003

Delivered at:

Newcastle

Hearing date:

20 August 2003

Judgment of:

Scarlett FM

REPRESENTATION

Solicitors for the Applicant:

Boyd Wooi Olsen

Solicitors for the Respondent:

Denise Clarke

Medical practitioner who received the subpoena:

In person

ORDERS

Medical records and other documents produced on subpoena in respect of the child Z M born 10 January 1994 are released for inspection by the legal advisers of the parties.
Photocopying of the material referred to in order (1) is not permitted.
The documents referred to in order (1) are to remain in the possession of one or other of the legal advisers of the parties involved in these proceedings at all times and are not to be removed from the Court precincts.
Copies of material relating to the child Z are not to be shown directly to either of the parties until further order in this Court.
Documents relating to the respondent are not to be released until further order. Those documents are to be retained in a sealed envelope to be opened only by order of a Federal Magistrate.
The matter will be adjourned for further consideration by the Court on 10.00 am on Friday, 29 August.
I require a transcript of my reasons for that decision.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
NEWCASTLE

NCM 5657 of 2002

R G

Applicant

And

D D

Respondent

REASONS FOR JUDGMENT

Application

I have considered the matters that have been put to me. I propose to make certain directions and I will give my reasons for the directions I am about to make.
There is before the Court today a subpoena addressed to

Dr J Y who is a child and family psychiatrist. The subpoena seeks the production to the Court of copies of all file notes, notes, correspondence, reports and any information held in any form whatsoever in respect to first, the respondent mother and second, a child of the parties whose name is Z. Z was born on

10 January 1994. Ms Olsen for the father seeks release of the documents for perusal by the parties' legal advisers. Dr Y himself objects to this taking place. He was required to produce documents to the Court and he has done so. He has indeed attended in person and has made an objection both in writing and orally in Court. I am satisfied that he may be regarded as having complied with the obligation placed upon him by the subpoena. I state that because I have made it quite clear that a subpoena is a Court order and that the person who receives a subpoena has an obligation to comply with it. And I am satisfied that Dr Y has done so.
The basis or bases of the objection is…

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.

Keep reading for free

Create a free CaseChat account to read M and D and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2003] FMCAfam 354
Decision Date: 20 August 2003

CaseChat Overview and Summary

The case of M and D was heard by a Federal Magistrate of the Family Court of Australia. The parents of a child born on 10 January 1994 were in dispute over the production and use of medical records and other documents relating to the child. The legal advisers of the parties were permitted to inspect the documents produced on subpoena, but were prohibited from photocopying them and were required to keep them within the court precincts. The documents were not to be shown directly to the parties until further order, and documents relating to the respondent were to be retained in a sealed envelope until the magistrate ordered otherwise. The matter was adjourned for further consideration on a specified date.

The court had to decide on the appropriate conditions under which the medical records and other documents could be inspected by the legal advisers of the parties. It also had to determine whether the documents could be photocopied, and if so, under what circumstances. Furthermore, the court needed to decide on the appropriate security measures to ensure that the documents did not leave the court precincts and were not shown directly to the parties until further order. Finally, the court had to decide on the appropriate storage conditions for documents relating to the respondent.

The court considered the need to protect the privacy and welfare of the child, and the need to ensure that the documents were used only for the purposes of the proceedings. It concluded that the legal advisers of the parties could inspect the documents, but could not photocopy them or remove them from the court precincts. The documents relating to the respondent were to be stored in a sealed envelope until further order. The court also considered the need for a transcript of its reasons for the decision, and ordered that one be prepared.

Orders

Orders of the court

Medical records and other documents produced on subpoena in respect of the child Z M born 10 January 1994 are released for inspection by the legal advisers of the parties.

Photocopying of the material referred to in order (1) is not permitted.

The documents referred to in order (1) are to remain in the possession of one or other of the legal advisers of the parties involved in these proceedings at all times and are not to be removed from the Court precincts.

Copies of material relating to the child Z are not to be shown directly to either of the parties until further order in this Court.

Documents relating to the respondent are not to be released until further order. Those documents are to be retained in a sealed envelope to be opened only by order of a Federal Magistrate.

The matter will be adjourned for further consideration by the Court on 10.00 am on Friday, 29 August.

I require a transcript of my reasons for that decision.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.