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 an anticipation by Dr Y of serious and probably severe harm which could result from the documents being used inappropriately in Court. The harm could be sustained, he says, by both parents and therefore be seriously harmful to both of their children. He goes on to say that most of the documents are treatment notes that are generally quite unsuitable for interpretation by the average lawyer, especially without assistance and guidance by medical practitioners with advanced specialist training. He further says that the records contain some highly personal information, such as gynaecological treatments, that it should also not be in the hands of Family Court lawyers unless there were extremely compelling reasons. The concern is that that information could be taken out of its context and could be misused to create considerable legal mischief and psychological and social harm. Dr Y goes on to urge the Court to use great care with how these confidential medical documents are handled.
In reply to this, Ms Olsen has submitted that the material may well be relevant to the matter for determination before the Court. She raises two issues. First, the health of the parents insofar as that impacts on their ability to act as parents; and secondly, due to the fact that the child Z has exhibited some difficult behavioural patterns in the past and that medical issues relating to the child's behaviour would be a relevant subject for determination by the Court.
The matter is listed for hearing on Friday, 29 August. At this stage, notwithstanding the fact that a direction has been made that final affidavit material should be filed and served by 15 August, which was last Friday. Those affidavits are still not on the Court file. It is anticipated, however, by Ms Olsen on behalf of her client, that her client's material will be available for filing within the next couple of days.
The use to be made of documents produced on subpoena is such that they are available for inspection by the parties' legal advisers in order for them to make an informed decision as to whether or not they should seek to use that material in evidence. It goes without saying that production of documents on subpoena is no guarantee that the documents will be admitted into evidence. The decision as to whether documents will be tendered in evidence is a decision of the lawyers conducting the case on the day. The decision as to whether the material will be admitted into evidence is ultimately the decision of the Judicial Officer hearing the case, and that is based on the law of evidence, particularly as set out in the Evidence Act 1995 (Cth). It certainly goes without saying that where documents are produced, particularly documents of a medical nature, care must be exhibited at all times in dealing with these documents for reasons of privacy amongst others.
The ultimate test perhaps for the admissibility of documents in evidence is their relevance to the proceedings before the Court. As I said, Ms Olsen has submitted to me that there are two reasons why this material should be relevant; 1) the health of the parties, and 2) matters relating to behaviour of the child Z. I would say at this stage that matters relating to the treatment of the child Z may well be relevant to the matters upon which this Court is being asked to decide. Indeed, Dr Y has indicated to me that in his view the father has some right to know what treatment is being given to his son.
My view is that in respect of the material relating to the child, it is appropriate for the parties' legal advisers to be given the opportunity to inspect it with a view to making a decision as to its relevance in these proceedings. I do not propose, however, to release the documents more widely than that. I am not satisfied that at this stage those documents should be shown to the parties, and I certainly do not intend to allow at this stage any photocopies to be made for the parties. But I must, where the question of the behaviour of a child the subject of the proceedings is concerned, take the view that I should rely on the responsibilities to the Court of legal practitioners in dealing with documents that concern the health of the child. I will therefore be making directions in respect of the child Z in this regard.
I turn now to documents relating to treatment of the respondent. I am hampered by the fact that the final affidavit material has not been filed and I am mindful of the fact that some of the material that Dr Y has referred to in his statement relates to highly personal information, such as gynaecological treatment.
At this stage, I am not in the position to be satisfied that this material is of such relevance to the proceedings that I should allow access, even on a limited basis, with the possibility that a party may seek to tender it in evidence. I do not believe that I or my learned colleague will be in a position to make that decision until the final affidavit material of the parties is available. Accordingly, I am of a view that I will not release for the inspection of the legal advisers, copies of the material relating to the treatment of the respondent.
The application for release of that material may be revisited on the morning of the hearing, 29 August, once that affidavit material is available. That is a decision which, to my mind, should be made by the Federal Magistrate who will in fact be hearing the case. What that means is that the documents will be retained in the Court. The documents relating to the child Z will be separated from the documents that relate to the respondent. Those latter documents will be placed in a sealed envelope and they will bear the marking that those documents "To be opened only by order of a Federal Magistrate". The other documents relating to such treatment as has been given to the child Z I will direct may be released to the parties' legal advisers.
I propose to order a transcript of my reasons for this decision and I make the following orders that appear at the front of this decision.
The original of Dr Y' statement will be placed on the Court file for the benefit of my learned colleague and the transcript which I have ordered of my reasons is to be produced and it will need to be expedited so that it is available for my learned colleague to read when the matter is before him on Friday week, 29 August.

I certify that the preceding thirteen (13) paragraphs are a true copy of the reasons for judgment of Scarlett FM

Associate: S. Polley

Date: 22 August 2003