THEOPHANE & HUNT (INSPECTION OF MEDICAL RECORDS)

[2014] FamCA 707

FAMILY COURT OF AUSTRALIA

THEOPHANE & HUNT (INSPECTION OF MEDICAL RECORDS) [2014] FamCA 707

FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – Where subpoenae addressed to the Queensland Government were produced relating to two categories, namely the mother’s mental health, and other forms of medical assessment and treatment of the mother – Where mother objected to the second category of documents on the basis that they are not relevant to proceedings and to permit the father inspection would be an undue intrusion into her privacy – Where by assertion in an affidavit the father sought to raise an issue in proceedings in relation to an alleged termination of a child by the mother without the father’s consent – Where father asserts the relevance of any such termination shows the mother is prepared to indiscriminately harm others and hence that would inform the prospect of risk to the child – Where court satisfied any records of termination of a pregnancy by the mother would be wholly irrelevant to the proceedings and should not be made available to the father for inspection – Where court permitted inspection of documents relating to the mother’s mental health only.

Family Law Act 1975 (Cth)

APPLICANT: Mr Theophane

RESPONDENT: Ms Hunt

INDEPENDENT CHILDREN’S LAWYER: Susan Gray

FILE NUMBER: CSC 1089 of 2007

DATE DELIVERED: 7 August 2014

PLACE DELIVERED: Cairns

PLACE HEARD: Cairns

JUDGMENT OF: Tree J

HEARING DATE: 7 August 2014

REPRESENTATION

THE APPLICANT: In person

COUNSEL FOR THE RESPONDENT: Ms McMillan QC

SOLICITORS FOR THE RESPONDENT: O’Reilly Stevens

COUNSEL FOR THE INDEPENDENT CHILDREN’S LAWYER:

SOLICITORS FOR THE INDEPENDENT CHILDREN’S LAWYER:

Ms McArdle

Susan Gray

IT IS NOTED that publication of this judgment by this Court under the pseudonym Theophane & Hunt (Inspection of medical records) has been approved by the Chief Justice pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).

FAMILY COURT OF AUSTRALIA AT CAIRNS

FILE NUMBER: CSC 1089 of 2007

Mr Theophane

Applicant

And

Ms Hunt

Respondent

EX TEMPORE

RULING

1. The Queensland Government, and particularly the C Hospital, has responded to subpoenae addressed to it by the production of documents.  Those documents fall into two categories.  The first are documents relating to mental health assessments and treatments of the mother by relevant officers, both at the C Hospital and at other regional locations.  The second category of documents are those which refer to other forms of medical assessment and treatment of the mother from time to time.  The mother asserts that those other documents are not relevant to these proceedings, and to permit the inspection of them by the father would be an undue intrusion into her privacy. 

2. The parties agreed that in order to determine the mother’s objection I would need to examine the material in question, and I have done so.

3. One of the matters which the subpoena addressed to the hospital by the father specifically sought was “any file leading to a pregnancy being terminated by [the mother] born [in] 1978”.  Without acknowledging that there are, or are not, such documents contained within the material, I invited the parties’ submissions as to whether, in the event that such documents existed, they were potentially relevant to any matter in dispute in this litigation.  In doing so, I reminded the parties that at paragraph 14(e) of the father’s affidavit filed 19 May 2014, under the heading “Unacceptable Risk – [the child] in the Respondent’s Care” there appeared the following:

   These are the elements, re a unacceptable risk of the respondent and real risk and serious risk towards the child and her father … (e) on or about November 2006, [the mother] terminates the second pregnancy, the father’s child, without his consent.

4. By that assertion when the father has sought to raise as an issue in these proceedings the fact of any termination.  However it is appropriate that I should, in the course of determining whether or not the non‑psychiatric or psychological medical records should be available for inspection by the father, determine whether or not, if there were such a termination either in November 2006 or subsequently, or indeed previously, that is a matter which could possibly inform the Court as to the risk, if any, which the mother poses to the child when in her care.  The father, who appears for himself, asserted that the relevance of any such termination is that it would show that the mother is prepared to indiscriminately harm others, and hence that would inform the prospect of risk to the child. 

5. In my view, such an argument is wholly unsustainable.  There is, in my view, no sensible connection between the termination of a pregnancy on the one hand, and a risk of actual physical harm to a child in the mother’s care on the other.  I therefore rule that to the extent, if at all, there are records retained by the Department of Health or, indeed, any other agency of the Queensland Government, which include any record of a termination of a pregnancy by the mother, that they are wholly irrelevant to these proceedings, and they should not be made available for inspection by the father. 

6. I therefore permit the inspection of any and all parts of the documents produced pursuant to subpoenas 23 and 31 that relate to the mother’s mental health, but otherwise do not permit their inspection by the father.  As to the means by which that excision of the material can be objectively undertaken and supervised, I understand that already that task has been embarked upon by the solicitors for the mother.  However, it seems to me appropriate that that is something which, subject to any submissions which may be made after I deliver these reasons, should by verified by the Independent Children’s Lawyer.

I certify that the preceding six (6) paragraphs are a true copy of the reasons for judgment of the Honourable Justice Tree delivered on 7 August 2014.

Associate: 

Date:  7 August 2014