Mertz & Mertz (No 3)
[2025] FedCFamC1F 144
•7 March 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Mertz & Mertz (No 3) [2025] FedCFamC1F 144
File number(s): ADC 2893 of 2023 Judgment of: BERMAN J Date of judgment: 7 March 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where the respondent seeks leave to issue subpoenas for medical and employment records of the applicant – Where the applicant objects to the subpoenas on the grounds of relevance and fishing – Where the respondent has previously raised concerns about the applicant’s mental health – Leave to issue refused in relation to the applicant’s employment records and some of the applicant’s medical records – Leave to issue granted in relation to the remainder of the applicant’s medical records and clinical psychology notes with applicant to have first right of inspection and seven days to file an objection. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) rr 6.33, 6.38. Cases cited: Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419,
Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648,
Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93-038,
Hennessy v Wright (No. 2) (1980) 24 QBD 225,
Lucas Industries Ltd v Hewittand Others (1978) 18 ALR 555,
Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No. 4) [2007] SASC 255,
Martin & Martin and Anor (No.2) [2014] FamCA 232,
Mertz & Mertz [2024] FedCFamC1F 704,
National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372,
Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683,
Ryder & Lee [2009] FamCA 531,
Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476,
Woley & Humboldt (No. 4) [2009] FamCA 546.
Division: Division 1 First Instance Number of paragraphs: 61 Date of hearing: 28 February 2025 Place: Adelaide Counsel for the Applicant: Mr A. Hay Solicitor for the Applicant: Purdie Legal Counsel for the Respondent: Ms T. Lewis SC Solicitor for the Respondent: Norman Waterhouse Lawyers Counsel for the Independent Children's Lawyer: Mr S. Frazer Solicitor for the Independent Children's Lawyer: Ryder Family Law ORDERS
ADC 2893 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR MERTZ
Applicant
AND: MS MERTZ
Respondent
INDEPENDENT CHILDREN'S LAWYER
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
7 MARCH 2025
THE COURT ORDERS THAT:
1.Leave is refused for the issue of the following subpoenas:
(a)To Ms NN, of MM Health Services Town OO in respect of the medical records of the husband; and
(b)To PP Pty Ltd in respect of employment records of the husband from mid-2023.
2.Leave is granted for the issue of the following subpoenas:
(a)To QQ Health Service in relation to the medical records of the husband; and
(b)To Dr RR of SS Psychology in respect of the clinical notes of the husband;
PROVIDED THAT for a period of seven (7) days following the production of documents pursuant to the subpoenas, only the husband and his legal representative are permitted to inspect and copy and unless an objection is filed, thereafter the wife will have a right to inspect and copy documents produced.
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
This is a matter relating to the question of whether leave should be given for the issue of four subpoenas.
Mr Mertz (“the husband”) and Ms Metz (“the wife”) are unable to reach agreement as to the future parenting arrangements for Z born 2012, X born 2015 and Y born 2016 (collectively “the children”).
The parties are also not agreed as to settlement of property.
Trial direction orders were made on 8 November 2024 listing all applications for final orders for final hearing to commence on 7 April 2025 as a five to seven day matter.
Orders were made that required the husband to file and serve upon the wife any Amended Initiating Application, affidavits of evidence and a Financial Statement by 4.00 pm on 24 January 2025.
Assuming compliance by the husband with trial direction orders, the wife was ordered to file an Amended Response, affidavits of evidence and a Financial Statement by 4.00 pm on 14 March 2025.
As at the hearing date, the husband conceded that he has not complied with the trial direction orders and, whilst there remains some uncertainty as to when trial material would be ready for filing, on 28 February 2025, counsel for the husband foreshadowed that his trial material would be forwarded to the wife’s solicitors by 9.00 am on 3 March 2025. The wife has now had an opportunity to consider the husband’s trial material and subject to an extension of time is able to properly respond and present her case. Orders were made on 5 March 2025 extending time for each of the parties to file and serve trial material.
As has been the subject of previous comment, since the commencement of the proceedings the court file reflects 147 filed documents.
The parties acknowledge that the fees both billed and paid, billed and outstanding, and anticipated fees to the conclusion of the matter will likely exceed $1,000,000.
It is an unfortunate observation that the ongoing litigation, mired in high conflict and mistrust, is unlikely to be in the best interests of the children as was observed by Ms C in her prescient Family Report dated 18 December 2023.
For the purposes of the current application, the background is sufficiently reflected in my decision in Mertz & Mertz [2024] FedCFamC1F 704.
THE APPLICATION
The wife seeks leave to issue the following subpoenas:
(a)To Ms NN, of MM Health Service Town OO in respect of the medical records of the husband;
(b)To QQ Health Service in respect of the medical records of the husband;
(c)To Dr RR of SS Psychology in respect of the clinical notes of the husband; and
(d)To PP Pty Ltd in respect of employment records of the husband from mid-2023.
The husband opposes leave for a subpoena to issue to PP Pty Ltd. Whilst he also opposes the subpoenas seeking his medical records and clinical notes, it is likely that his opposition is not as to the production of documents but rather, their inspection by the wife being conditional upon having the right for first inspection to enable an objection to be taken if some or all of the likely material to be produced is either fishing, lacking in relevance to the proceedings or if the material is more prejudicial than probative.
LEGAL PRINCIPLES
Chapter 6 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (“the Rules”) imposes an obligation on the parties to make full and frank disclosure and provides the specific means by which that obligation can be fulfilled.
Despite the breadth of the duty to disclose, there are concerns about the overbroad disclosure documents in court proceedings particularly as it relates to subpoena.
The general practice as it relates to subpoenas to produce documents is explained by Smithers J in Lucas Industries Ltd v Hewittand Others (1978) 18 ALR 555 at 570:
The purpose of the process of subpoena is to facilitate the proper administration of justice between parties. For that purpose it is the policy of the law that strangers who have documents may be put to certain trouble in searching for and gathering together relevant documents and bringing them to court. It is according to the same principle that persons who have knowledge of facts are put to the inconvenience of being brought to court and required to give evidence.
A named person or a person who has sufficient interest in a subpoena may seek an order for the subpoena to be set aside in whole or in part, or may object to production, inspection or photocopying of the documents required by subpoena.[1]
Federal Circuit and Family Court of Australia (Family Court) Rules 2021 (Cth) rr 6.33, 6.38.
The primary test is the relevance of the documents to the issues before the Court. The Full Court in Hatton v Attorney-General of the Commonwealth of Australia & Ors (2000) FLC 93‑038 (“Hatton v AG”) considered the test of relevance and set out examples of where a Court may determine where it is proper to set aside a subpoena:
·If the subpoena is for an improper purpose namely to obtain discovery against a third party;
·Where it might be oppressive to comply with the subpoena;
·Where a party embarks upon a “fishing expedition”; and
·That the subpoena should be set aside because it lacks relevance to the proceedings.
The decision of X Pty Ltd and Ors & Merhi [2015] FamCA 622 concerned an application seeking review of orders made by a Registrar dismissing objections to subpoenas issued by the Court. The applicants were 12 companies that had been served with subpoenas (companies of which the husband had an interest in). McClelland J found that the subpoenas were inappropriate because:-
43. … Essentially, they are speculative in the sense that they are a “train of inquiry” that might assist the wife’s case rather than it being “on the cards” that they will result in the production of documents that will be relevant to the issues in the case. To that extent the subpoenas to those companies amount to “fishing” and should be set aside.
His Honour gave an overview of the law referring to the power of the Court to issue a subpoena set out in Pt 15.3 of the Family Law Rules 2004 (Cth) (as they then were), and the power to set aside a subpoena so issued.
At [25], his Honour refers to Hattonv AG in particular, the relevant stages of having a third party bring documents to the Court being a three-step process:-
25. The relevant stages of having a third party bring documents to court were described in Hatton (supra) at [38], by reference to National Employers’ Mutual General Association v Waind and Hill [1978] 1 NSWLR 372, as being a three step process:
“The first [step] is obeying the subpoena, by the witness bringing the documents to the court and handing them to the judge. This step involves the determination of any objections of the witness to the subpoena, or to the production of the documents to the court pursuant to the subpoena. The second step is the decision of the judge concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents. The third step is the admission into evidence of the document in whole or in part; or the use of it in the process of evidence being put before the court by cross-examination or otherwise…This application by the applicant companies concerns the first step referred to in Hatton (supra)…”
In Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648, the Full Court applied the principles enunciated in National Employers’ Mutual General Association Limited v Waind and Hill [1978] 1 NSWLR 372 and Hatton & AG and found that a subpoena must only be used for a legitimate forensic purpose. A subpoena that does not have a legitimate forensic purpose is an abuse of process and must be set aside. In this case, an objection was made to the production of documents under subpoena on public interest immunity grounds. The Full Court helpfully outlined the “usual procedure adopted”[2] when a subpoena for the production of documents is issued:
36. … This first step involves the determination of any objections to the subpoena or to the production of the documents. It is at this stage that the court will consider any claim by the person to have the subpoena set aside on the basis it is oppressive, is an abuse of process and the like and, relevantly, public interest immunity. …
…
40. The second step is the decision concerning the preliminary use of the documents, which includes whether or not permission should be given to a party or parties to inspect the documents produced to the court and under its control. In this regard, the crucial question is whether the documents have apparent relevance to the matters in issue or are themselves the subject matter of the litigation. …
41. The third step is the admission into evidence of a document or its use in the process of taking evidence. It is at this step that questions between the parties of relevance in fact and admissibility are determined…
(Citations omitted)
[2] Dupont & Chief Commissioner of Police and Anor (2015) FLC 93-648 at [35].
In Martin & Martin and Anor (No.2) [2014] FamCA 232 (“Martin”), Cronin J found that the focus of the Court should be whether it was “on the cards” that the documents would materially assist the proceedings. Cronin J referred to his own comments in Woley & Humboldt (No. 4) [2009] FamCA 546, where he said:
39.In Hudson Timber and Hardware Ltd v Chaudhary Group Pty Ltd [2002] FCA 832 the Full Court of the Federal Court examined the issue of apparent relevance and said that the relevant principles governing the obtaining of documents on subpoena which have “apparent relevance” were that inter alia:
(1) The relevance of documents was not limited to documents directly admissible in themselves in proof of an issue raised in pleadings; and
(2) If a class of document which has material forensic relevance could be shown to exist, then a subpoena would not normally be set aside.
40.In White v Tulloch (1995) FLC 92-640, the Full Court of the Family Court referred to the test in terms of documents having “a sufficient apparent connection to justify their production or inspection”.
41.In Trade Practices Commission v Arnotts Ltd (No 2) (1989) 21 FCR 306, Beaumont J saw relevance as something where a document “could possibly throw light on the issues in the main case”.
42.In Portal Software International Pty Ltd v Bodsworth, [2005] NSWSC 1115, Brereton J looked at a number of authorities including of this Court and said:
“Thus it is plainly not the question at this (first) stage whether the documents, production of which is sought, will definitely advance the case of the parties issuing the subpoena, nor whether they will be admissible in evidence at the trial. It is sufficient that they could “possibly throw light” on the issues in the substantive proceedings, or that it appears to be “on the cards” that they will do so. What are the issues in the proceedings will appear from the pleadings (where there are pleadings), the affidavits, and the legal principles which govern the claims for relief in the substantive proceedings.”
In Martin at [29], Cronin J also referred to his decision in Papadopoulos & Papadopoulos (No. 2) [2007] FamCA 1683 wherein he observed:
49.The question of what is relevant takes on significance. The objective must be to assist the parties and the court in the determination of the issues in dispute. How does one determine that at an early stage? The issue was considered in the Victorian Supreme Court in Killorgan Investments Pty Ltd v Baycorp Advantage Business Information Services Limited and Ors where Byrne J said:
‘The degree of relevance for this purpose is not high: the inspecting party need only show a legitimate forensic purpose in the inspection. A party is entitled to inspect documents not only to see if they contain relevant facts, but also to see if they contain information which may be proved otherwise than through that document.’
50.Accordingly, the bar is not set very high in respect to the question of relevance in a civil proceeding as between strangers. It should be less so in family law proceedings provided the pursuit of information is genuinely designed to assist in determining the issue and not for some illicit or harassing type of reason.
51.The onus in establishing the relevance lies on the person seeking the production of the documents either by way of subpoena or through discovery.
In terms of “fishing”, it is not legitimate for a party to issue a subpoena with a view to determining whether the issuing party has a case at all. In Unitingcare – Unifam Counselling & Mediation & Harkiss and Anor (2011) FLC 93-476, the Full Court at [69] referred to Hennessy v Wright (No. 2) (1980) 24 QBD 225 at 448 whereby the concept of a “fishing expedition” was described as occurring where:
… the plaintiff wishes to maintain his questions, and to insist upon answers to them, in order that he may find out something of which he knows nothing now, which might enable him to make a case of which he has no knowledge at present.
In deciding that a subpoena to a third party should be set aside, in Ryder & Lee [2009] FamCA 531, Burr J adopted the following passage from the decision of Gray J in Andrew Garrett Wine Resorts & Anor v National Australia Bank Limited (No. 6) (2005) 92 SASR 419 where his Honour said at 428:
It is not enough for the party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. The party supporting the subpoena must demonstrate that the documents sought in the subpoena are of real relevance to the issues in the case. It must be more than an outside chance that something useful might turn up in the documents.
(Footnotes omitted)
In summary, it is not enough for a party issuing the subpoena to raise a speculative possibility that the documents sought would assist the resolution of the dispute. The party supporting the subpoena must demonstrate that the documents sought in the subpoena are of real relevance to the issues in the case. It must be more than an outside chance that something useful might turn up.
As has been noted, a subpoena that is tantamount to discovery is likely to be set aside as an abuse of process. As an extension of that principle, it is impermissible for a subpoena to be used to rectify inadequate discovery by a party to the proceedings. In Macks v Tucker & Ors & QBE Insurance (Australia) Ltd (No. 4) [2007] SASC 255, Bleby J said at [49] that in such a case:
It seems to me that the more appropriate course for the defendants to follow is to seek an order for further and better discovery from the plaintiffs, if they have a genuine concern about the adequacy of the plaintiff’s discovery and if they can point to reasons why that appears to be inadequate. …
Rule 6.27 provides for a limit on the requests made for subpoena to issue up to five subpoenas without permission of the Court.
To date, the wife has issued eight subpoena and if successful, seeks to issue a further four subpoenas.
DISCUSSION
The wife relies upon her affidavit filed 12 February 2025 that relates to the apparent relevance of the various categories of documents sought to be produced under subpoena.
The subpoenas comprise two categories namely:
(1)Matters relating to alleged mental health issues impacting the husband; and
(2)Circumstances surrounding the husband’s employment with PP Pty Ltd up to and including his termination or resignation from his employment and the underlying basis.
The focus of the wife is somewhat confused as to whether the subpoena to PP Pty Ltd involves the husband’s mental health or whether, as a result of his employment, mental health issues have been identified which may impact upon his ability to properly parent the children pursuant to the orders he seeks in his (Amended) Initiating Application filed 11 July 2024 noting that he has not yet filed a competent Further Amended Initiating Application. The husband seeks the sole parental responsibility for the children, that they live with him and spend time with the wife five nights a fortnight save for the child Z who shall spend time with the wife subject to his wishes.
By her (Amended) Response to Initiating Application filed 26 March 2024, the wife seeks that she have sole parental responsibility for the children, that they live with her and spend four night a fortnight and half of school holidays with the husband.
It may be that if and when the parties file their trial material, they may well seek different orders. However, at present, it is a relevant consideration that the wife does not consider that the husband presents as an unacceptable risk to the children but rather that the children’s best interests are served by being in her primary care.
The wife states that she has sought discovery and production from the husband of his payslips and financial records arising from his employment with PP Pty Ltd.
Orders were made on 23 October 2024 that required the husband to “produce the documents as set out in paragraph 13 of the Amended Application in a Proceeding filed 2 October 2024 except as to paragraph 13.12, 13.16 and 13.22”.
Accordingly, the wife has the advantage of an order requiring the husband to produce the following documents which are related to the husband’s employment:
13.3The husband’s most recent contact with [TT Company].
…
13.5Any documents in the husband’s possession pertaining to the “[…]” podcast.
13.6Copies of any communications in respect of the end of the husband’s [PP Pty Ltd] contract or renewal of the same.
13.7Copies of any communications in respect of the end of the husband’s [TT Company] contract or renewal of the same.
13.8Documents in relation to all sponsorship arrangements the husband has entered into since January 2022 including but not limited to the use of motor vehicles.
…
13.11Evidence of the bonus wages received by the husband under paragraph y of the husband’s contract with [PP Pty Ltd] for the term 1 January 2023 to 31 December 2024.
…
13.16A letter from the husband’s employer in respect of the husband’s assertions as to the events that took place that resulted in the husband’s pay for the pay cycle ending 14 January 2023 to be withheld from the parties’ joint account.
…
13.18The husband’s PP Pty Ltd payslip for the month of May 2024.
A consideration of the Schedule 2 documents sought by the wife have a focus on documents that go to the “conclusion and/or termination of [the husband] employment”.
The assertion of the wife, and reinforced by submissions of counsel, is that there is something relevant to the proceedings arising out of the basis for the husband ceasing his employment with PP Pty Ltd. The husband says that he gave up his employment, albeit with some level of reluctance, to focus on the children and the litigation. The wife appears convinced that there is a more sinister basis. She considers that if his employment was terminated rather than his resignation, in some way, that has a connection with the broad assertion that the husband is aggressive and bullying in his demeanour and interaction with others, particularly those with whom he works. The wife considers that there is a tendency or consistency likely to be established when considering an incident in 2016 where it is alleged that the husband was rude and derogatory towards a fellow employee.
Schedules 3 and 4 relate more directly to wages, salary, annual, sick, personal and carers leave.
The husband is already the subject of an order as to his employment and financial arrangements with PP Pty Ltd. He is obliged to provide documents relating to his employment including termination, resignation or renewal with PP Pty Ltd.
It is a matter for the husband to provide documents that are relevant to an issue in the proceedings and it is uncontroversial that financial arrangements between the husband and PP Pty Ltd, to the extent that they are not already covered by an order, would likely be of some relevance.
The wife has an interest that goes beyond the financial arrangements between the husband and his former employer.
I do not consider, given the orders as presently formulated by the wife, that the categories of documents sought to be produced pursuant to sch 2(c)(d) and (e) is relevant to an issue in the proceedings.
The balance of the categories of documents sought are matters that can be produced by the husband. A subpoena is not an alternative to discovery. As considered, such a request amounts to an abuse of process.
The wife is seeking documents that may go to the husband’s mental health should be considered as “fishing”. The wife does not present any evidence that would suggest a nexus between the husband ceasing his employment and mental health issues or other adverse conduct.
It should also be noted that the wife was not able to obtain any indication as to the attitude of the husband’s former employer, but it is likely that an attempt to involve PP Pty Ltd in the proceedings by seeking to interrogate their files pursuant to a subpoena may well excite some interest on their part.
THE HUSBAND’S MENTAL HEALTH
The wife refers to paragraph 70 of the husband’s affidavit of 11 August 2023, wherein he deposes to seeing Dr RR who is a clinical psychologist. From the report, Dr RR confirms that the husband “openly admitted and described previous suicidal ideation however, [the husband] denied intent or a plan, further stating he had negotiated his contract in his sector, in addition to looking forward to spending more quality time with his children, family and social network”.
It is the theme of the husband’s suicidal ideation that underpins the intent of the wife to obtain documents from Dr RR, the QQ Health Service and MM Health Service Town OO. The documents are targeted in respect of the following treatment areas:
(1)Any mental health complaint including but not limited to anxiety, depression, panic attacks, insomnia, counselling and/or therapy;
(2)Alcohol consumption; and
(3)Drug use.
Again, the subpoena must be considered as against the orders being sought by the parties, but in this case the wife. At this stage, it is not part of the wife’s case that the children should not spend time with and/or have a fulsome relationship with the husband. Presumably, the wife considers that her perception of the husband’s mental health would speak against Z remaining in his primary care.
It should also be noted that neither party intends to call any psychiatric or psychological evidence and, as such, there was a concession by senior counsel for the wife that the documents are to be used for the purpose of cross-examination and not as a precursor to determine whether the production of documents pursuant to the subpoena may lead to the recipient being called to give evidence.
As matters have transpired, documents have been produced pursuant to a subpoena issued to QQ Health Service in June 2023. The contention of the wife is that those documents support her concern that the husband’s mental health may impact upon his ability to care for the children but in particular, pursuant to his parenting proposal that the children should be in his primary care.
The subpoena to MM Health Service Town OO is problematic in that paragraph 55 to 65 of the wife’s affidavit filed 12 February 2025 sets out that the relevance of the subpoena is in respect of the husband taking the children but in particular, Z for consultation and assessment.
Leave has already been given for a subpoena directed to MM Health Service Town OO in relation to the attendance by the children.
The second subpoena to MM Health Service Town OO relates again to any mental health complaint forming part of the husband’s presentation to MM Health Service. There is no evidence that any such documents exists but rather it is the wife’s contention that if there had been some discussion about mental health issues with Dr RR then it is reasonable to expect that the husband may have received ongoing treatment or therapeutic intervention.
I do not consider there is evidence of any connection, and it must be nothing more than a broad enquiry in the hope that there may be a note, a report or some other document pertaining to the wife’s apprehension of a mental health issue affecting the husband.
In the absence of any evidence to support the proposition that MM Health Service have medical or clinical notes relating to any mental health complaint, alcohol consumption or drug use, I consider that leave should not be given.
In relation to the subpoena to QQ Health Service and Dr RR, leave is to be given for the issue of the subpoena, however, subject to any objection that may be filed by the subpoena recipients. The husband will have the right of first inspection of the documents and he will be given seven days to object to the wife being able to inspect the documents produced.
The husband will have the opportunity to consider the extent to which the wife should be privy to his personal medical records that fall into the category of documents that do not touch upon an issue in the proceedings.
I make orders as appear at the commencement of these reasons.
I certify that the preceding sixty-one (61) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 7 March 2025
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