Millman & Millman (No 3)
[2021] FedCFamC1F 143
•20 October 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Millman & Millman (No 3) [2021] FedCFamC1F 143
File number(s): ADC 30 of 2020 Judgment of: BERMAN J Date of judgment: 20 October 2021 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Objection to Subpoena – Where the wife caused a subpoena to issue to the husband’s general practitioner – Where the husband objected on the basis that the subpoena does not sufficiently identify the documents that are likely to be relevant to the proceedings – Where the documents have been produced – Where the husband’s mental health is a relevant issue in the proceedings – Where the documents are likely to be of apparent relevance – Where the wife has not embarked upon a fishing expedition – Objection dismissed. Legislation: Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.38 Cases cited: Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98
Hatton v Attorney-General of Commonwealth of Australia (2000) FLC 93-038
X Pty Ltd & Ors & Merhi [2015] FamCA 622
Division: Division 1 First Instance Number of paragraphs: 24 Date of hearing: 18 October 2021 Place: Adelaide Counsel for the Applicant: Ms Lewis Solicitor for the Applicant: Jacqui Ion Lawyers Pty Ltd Counsel for the Respondents: Mr Dillon Solicitor for the Respondents: Angela Ferdinandy ORDERS
ADC 30 of 2020 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS MILLMAN
Applicant
AND: MR MILLMAN
Respondent
ORDER MADE BY:
BERMAN J
DATE OF ORDER:
20 OCTOBER 2021
THE COURT ORDERS THAT:
1.The husband’s objection to the subpoena directed to Dr HH dated 28 September 2021 is dismissed.
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).
Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish 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 the pseudonym Millman & Millman has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
BERMAN J
INTRODUCTION
Ms Millman (“the wife”) caused a subpoena to issue on 28 September 2021 seeking that Dr HH produce his complete file in relation to medical treatment rendered to Mr Millman (“the husband”) for the period 1 January 2010 to the current time.
The husband objects to the subpoena on the basis that it does not sufficiently identify the documents sought that are likely to be relevant to the proceedings. Further it is agreed that the personal private medical records pertaining to the husband’s health are unlikely to be relevant to an issue in dispute.
Rule 6.38 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (“Family Law Rules”) provides:
(1)A person who objects to producing a document subpoenaed, or another party or an interested person who objects to the inspection or copying of a document subpoenaed by a party to the proceedings, must, before the day stated in the subpoena for production, give written notice of the objection and the grounds of the objection to:
(a) the Registry Manager; and
(b)if the objector is not the person subpoenaed-the person subpoenaed; and
(c)each party, or other party, to the proceeding; and
(d)each independent children’s lawyer, or each other independent children’s lawyer, in the proceedings.
The recipient of the subpoena has not objected and Dr HH’s medical file as it relates to the husband has been produced.
Given the notes relate to the husband’s medical health he is considered to be an interested person.
I adopt the legal principles as set out in my earlier judgment of Millman & Millman [2021] FedCFamC1F 39.
In Botany Bay Instrumentation & Control Pty Ltd v Stewart [1984] 3 NSWLR 98 at 100 Powell J considered some of the examples in which a court may exercise its jurisdiction and set aside a subpoena, including the following circumstances:
5.where the subpoena has been used for the purpose of obtaining discovery against a third party…
6.where to require a party to comply with a subpoena to produce documents would be oppressive…
7.where the subpoena has been issued for a purpose which is impermissible, as, for example, “fishing”…
(Citations omitted)
The Full Court in Hatton v Attorney-General of Commonwealth of Australia (2000) FLC 93-038 also considered that lack of relevance constituted a proper ground for the setting aside of a subpoena.
RELEVANCE
Dr HH is the husband’s general practitioner of some long standing. The wife is not interested in what might be described as the husband’s day to day ailments and routine treatment administered or recommended but rather the extent to which the husband’s medical notes, as prepared by Dr HH, relate to the consideration and treatment of the husband’s mental health issues, in particular a diagnosis of Adjustment Disorder.
The husband intends to rely upon Dr K who is the husband’s psychiatrist. The husband was referred to Dr K by Dr HH on or about 7 February 2020. The purpose of the referral was for an assessment and ongoing management of the husband’s psychiatric difficulties and presentation.
Whilst I am uncertain as to whether the husband continues to consult with Dr K or is receiving ongoing mental health management by Dr HH, the husband consulted with Dr K on 12 February 2020, 17 March 2020, 27 April 2020 and 5 June 2020.
The referral from Dr HH tentatively diagnosed the husband as suffering from an Adjustment Disorder.
On initial consultation with Dr K, he confirmed the diagnosis of Adjustment Disorder with Depressed Mood.
The relevance to the proceedings is that shortly after separation the husband suffered periods of depression and whilst he denied being suicidal, his mental health status was such that he was given a certificate by Dr K certifying that he was not fit to work.
The wife has focussed on the husband’s mental health and alleges that their relationship was marred by family violence, coercive and controlling conduct and an inability to manage his anger.
As part of the treatment and management plan, the husband attended upon Ms GG for psychological assessment but also to consider whether the husband’s presentation might adversely affect the children if they were in his care.
Ms GG’s report dated 10 June 2020 is annexed to her affidavit filed 26 August 2021.
In answer to the following question posed to Ms GG, namely “Whether you have identified any psychological or emotional difficulties that would interfere with our clients ability to parent the children”,[1] the husband provided the following recorded response:
Mr Millman reported having been diagnosed with adjustment disorder and mild depression by Dr K, psychiatrist, whom he had known for 10 years. He denied any suicidal ideation, or psychosis. He had been prescribed Seroquel to assist with insomnia and took a 25mg dose on an as-need-basis. He also had been prescribed Sertraline, an antidepressant. Dr K has advised of the need to engage in regular exercise, which he had pursued via bike riding. He focussed on maintaining a positive outlook, and focus on self-care. He had received emotional support from his brother-in-law and a friend, resident in Country L who had travelled to stay with him in January. There was no evidence from Mr Millman’s presentation and the information reported to suggest his mental health issues would interfere with his ability to parent the children.[2]
[1] Affidavit of Ms GG filed 26 August 2021, page 26.
[2] Ibid.
The husband considers that his history of mental health issues and the evidence of his current presentation would not adversely impact upon the children. That enables an easy finding that the husband’s mental health is a relevant issue in the proceedings. Accordingly, the medical notes and records as prepared by Dr HH are likely to be of apparent relevance. The documents could possibly throw light on an issue in the proceedings.
I am cognisant that the subpoena may well be an invasion of the husband’s privacy in respect of medical and health issues that are entirely separate to the focus of the proceedings.
FISHING
Given that the husband concedes by his own reliance on the evidence of Dr HH that the notes will contain information that is relevant to the proceedings, I do not consider that the wife has embarked upon a “fishing” expedition. As was considered by McClelland J (as then was) in X Pty Ltd & Ors & Merhi [2015] FamCA 622 the wife is not embarking on a “train of enquiry”[3] but rather on the certain knowledge that the medical notes will contain relevant material.
[3] X Pty Ltd & Ors & Merhi [2015] FamCA 622 at [43].
No application has been made on behalf of the husband seeking that if the Court dismisses his objection, the Court consider the documents produced under subpoena by Dr HH and identify those portions of the medical file that relate to the husband’s mental health.
In those circumstances, I propose to exercise my discretion and dismiss the objection and allow for the documents produced by Dr HH to be inspected. At this stage I am not prepared to permit the wholesale copying of the medical notes pertaining to a period of more than ten years.
I make the order as appears at the commencement of these reasons.
I certify that the preceding twenty-four (24) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Berman. Associate:
Dated: 20 October 2021
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