Vitalis & Kazan (No 2)
[2022] FedCFamC1F 601
Federal Circuit and Family Court of Australia
(DIVISION 1)
Vitalis & Kazan (No 2) [2022] FedCFamC1F 601
File number(s): SYC 2820 of 2022 Judgment of: SMITH J Date of judgment: 19 August 2022 Catchwords: FAMILY LAW – Application for Review – subpoenas – parenting – genuine forensic purpose – gender reassignment surgery – Review allowed. Legislation: Family law Act 1975 (Cth) s 117, s 121
Federal Circuit and Family Court of Australia Act 2021 (Cth) s 67
Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)
Cases cited: Commissioner for Railways v Small (1938) 38 SR (NSW) 564
Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49
Mann v Carnell (1999) 201 CLR 1
Vitalis & Kazan [2022] FedCFamClF 559
Division: Division 1 First Instance Number of paragraphs: 45 Date of hearing: 18 August 2022 Place: Sydney Counsel for the Applicant: Ms Cantrall Solicitor for the Applicant: Barkus Doolan Winning Solicitor for the Respondent: Mr Reeve Solicitor for the Independent Children's Lawyer: Ms Laurence ORDERS
SYC 2820 of 2022 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS KAZAN
Applicant
AND: MS VITALIS
RespondentINDEPENDENT CHILDREN'S LAWYER
order made by:
SMITH J
DATE OF ORDER:
19 August 2022
THE COURT ORDERS THAT:
1.Grant the Application for Review filed 25 July 2022.
2.Set aside Orders 1, 2 and 3 of the Orders of 18 July 2022.
3.Leave be granted to the parties’ legal representatives and the Independent Children’s Lawyer to inspect the documents produced on subpoena by
(a)Dr O; and
(b)P Company
4.The documents identified in Order 3 above are not to be inspected by, or shown or provided to, any person not covered by Order 3 above without a further order of the Court.
5.Leave be granted to the Independent Children’s Lawyer to obtain copies of the documents identified in Order 3(a) above for possible provision to experts or inclusion in Court Books. Those documents are not to be provided to any other person without further order of the Court.
6.Leave be granted to the Independent Children’s Lawyer and the parties to obtain copies of the documents identified in Order 3(b) above.
7.Reserve to the final hearing each parties and the ICL’s costs of and incidental to this Application for Review, including the determinations of the Objections to subpoenas filed 6 July 2022.
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 a pseudonym Vitalis & Kazan has been approved pursuant to s 121(9)(g) of the Family Law Act 1975 (Cth).
REASONS FOR JUDGMENT
Smith J:
The issue before the Court is whether two subpoena filed 24 June 2022 by Ms Kazan and directed to and served on Ms Vitalis’ surgeon Dr O and on Ms Vitalis’ medical insurer P Company should be set aside pursuant to Ms Vitalis’ Notices of Objection filed 6 July 2022 in the context of a proceeding in which each party seeks parenting orders pursuant to the Family Law Act 1975 (Cth) (“the Act”).
On 18 July 2022, a Judicial Registrar made orders setting aside the two subpoenas and ordering Ms Kazan to pay Ms Vitalis’ costs in the sum of $1,000.
On 25 July 2022, Ms Kazan filed an Application for Review seeking that the Judicial Registrar’s orders be discharged, and that the parties’ legal representatives, but not the parties, be granted leave to inspect and copy the documents which have already been produced to the Court’s registry by Dr O and by P Company.
This proceeding is in Justice Altobelli’s docket. On 5 August 2022, Justice Altobelli delivered Judgment on the appropriate interim parenting orders to make for the parties two children the subject of these proceedings who are aged 4 and 8 (Vitalis & Kazan [2022] FedCFamClF 559).
The main issue His Honour identified at that time was whether [1]:
“two children, aged 8 and 4, should continue to have supervised time with a parent who is going through gender transition.”
Ms Vitalis is the parent going through gender transition.
Justice Altobelli also observed that [5-6]:
5. … In [Ms Kazan’s] case, there was no suggestion that a transgender parent is less capable of parenting because of transition. The process of transition does not necessarily impact on parenting capacity. Consistent with the Act, the best interests of the children will be the paramount consideration. As will be seen, there are a number of risk factors raised in the case that will need to be determined, only one of which is the impact of [Ms Vitalis’] transition on her relationship with the children, and on the children generally.
6. [Ms Vitalis’] own evidence suggests that for her, the transition from male to female is a process, rather than an event. Indeed, it is a complex process for her. It may well be that the better managed the transition is for [Ms Vitalis], the less stress there will be on the children and their relationship with her. A possible corollary of that is that the better managed her relationship with the children is, the smoother will be her transition. [Ms Vitalis’] own evidence suggests that the transition process might create feelings including fear, uncertainty, and emotional and physical fatigue.
His Honour also said at [38-40]:
38. There are some uncontested facts that appear from the documents contained in the tender bundles of the parties.
39. For example, [Ms Vitalis’] medical records clearly indicate a psychiatric diagnosis of gender dysphoria, with an innate and enduring gender identity as female since childhood. Feminising hormone treatment commenced in mid-2016. The medical records indicate social transition since […] 2018. A [medical procedure] was planned for […] 2020 but other gender affirmation surgery was delayed for financial reasons. [Ms Vitalis] has the benefit of a mental health care plan which refers, in part, to the anxiety that she is experiencing both as regards her transition, and the breakdown of her relationship with [Ms Kazan] and its consequential impact on her relationship with her children.
40. [Ms Kazan] is engaged with a clinical psychologist who she meets on a weekly basis. [Ms Kazan] reported stress and anxiety, as well as her experience of being in a coercive, controlling and abusive relationship.
Prior to that Judgment, by orders dated 24 May 2022, Ms Vitalis was ordered to provide:
4. Not later than 4.00pm on 31 May 2022 that [Ms Vitalis] provide to [Ms Kazan] the names and contact details of:
a. all treating practitioners in relation to her transition;
b. all treating practitioners in relation to mental health;
for the period 1 January 2015 to date.
By those same orders Ms Kazan was ordered to provide:
5. Not later than 4.00pm on 31 May 2022 that [Ms Kazan] provide to [Ms Vitalis] the names and contact details of:
a. all treating practitioners in relation to mental health;
for the period 1 January 2015 to date.
On 1 June 2022 Ms Vitalis provided a list of “treating practitioners in relation to her transition” and a list of “treating practitioners in relation to her mental health”.
One of the treating practitioners identified was Dr O. Dr O was the surgeon retained to conduct Ms Vitalis’ medical procedure. Ms Kazan subpoenaed Dr O for his file. Dr O has produced documents that have not yet been accessed.
Ms Kazan submits that Ms Vitalis did not make full disclosure of her treating medical practitioners as ordered, or in the alternative that Justice Altobelli’s judgment makes it clear that all of Ms Vitalis’ medical practitioners are potentially relevant. Ms Kazan issued a subpoena to P Company for Ms Vitalis' claims history evidencing service providers from 1 January 2015 to date. P Company has produced documents that have not yet been accessed.
It was common ground that the relevant principles to be applied are those articulated by the High Court of Australia in Mann v Carnell (1999) 201 CLR 1 and in Esso Australia Resources Ltd v Federal Commissioner of Taxation (1999) 201 CLR 49. The bar for establishing relevance is relatively low. If a genuine forensic interest is demonstrated, even if the material itself is not likely to be admissible, but only likely to aid in the preparation of the case or its overall investigation, then the subpoena is a legitimate investigative tool.
The parties agreed that the Judgment of Justice Altobelli identified the relevant issues in the context of a non-pleading jurisdiction.
In any parenting proceeding any parties’ mental health issue is potentially relevant to the extent that it may impact on parenting capacity.
The relevant mental health issue is not suggested to be gender dysmorphia. It is clear from the Judgment that, on her own evidence, Ms Vitalis’ overall mental health has been impacted by the totality of her circumstances, including these proceedings, and that she has sensibly been seeking assistance for her mental health.
There is no dispute that Ms Vitalis’ mental health is therefore a relevant fact potentially in issue in the proceedings and a fact in respect of which subpoena may issue. Ms Vitalis has pointed out in her written submissions that she has not objected to subpoena issued by Ms Kazan on her identified treating mental health practitioners.
Dr O
Ms Vitalis objected on the basis of relevance. The submission was to the effect that the details of the biological surgical procedures Dr O is involved in will not illuminate any issue relevant to parenting capacity. On this basis this subpoena, together with that to P Company, was said to be a “fishing expedition” (eg Commissioner for Railways v Small (1938) 38 SR (NSW) 564).
Ms Kazan’s case was that the nature of the surgery is relevant to the possibility or likelihood that Dr O engaged in an assessment of Ms Vitalis’ mental health, and that this in turn is relevant to the assessment of whether or not there is a genuine forensic purpose to the subpoena.
The argument is that that if the procedure was, for example, simple orthopaedic surgery then it is unlikely that there would be any relevant material as the biological procedure is not of itself relevant, and it is unlikely an orthopaedic surgeon would engage in a mental health assessment. In another example, that of a surgical oncologist, while the nature of the underlying biological problem will often involve psychological distress, so the chances of the surgeon engaging in an independent mental health assessment are perhaps greater, a mental health assessment is still not likely to be part of that surgeon’s role. However, as part of gender reassignment, the nature of the surgery might reasonably require the surgeon to satisfy themselves that the patient meets the criteria under the World Professional Association of Transgender Health Standards of Care Guideline. That might reasonably require the surgeon to engage in their own assessment of the patient’s mental health status.
In this case, while Dr O had an opinion from Ms Q, Ms Vitalis’ treating clinical psychologist, dated 9 September 2020 advising that Ms Q considered Ms Vitalis met the criteria for surgery under the Guidelines, it is at least possible that Dr O was required to and did undertake his own independent mental health assessment of Ms Vitalis, taking into account Ms Q’s opinion but not merely relying upon it.
Ultimately the solicitor for Ms Vitalis, quite correctly in my view, conceded that given the nature of the surgery the possibility of Dr O engaging with Ms Vitalis’ mental health probably brought that subpoena within the tests stated by the High Court which bind me. I am satisfied that there is a sufficient apparent connection to the issues.
Despite that concession Ms Vitalis maintained the objection on the basis firstly of privacy grounds, due to the intimate nature of the surgery, and secondly on the basis that the Court should control the use of subpoena in pursuance of the overarching purpose s 67 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the FCFCOA Act”) and the associated Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) (‘the Rules’).
Whilst privacy grounds would be relevant if the information sought went only to the physical process, where it is conceded that there is a real possibility of a mental health assessment, and therefore a genuine forensic purpose, privacy is not a proper ground for objection. While the Ms Vitalis’ position is understandable, given the sensitive nature of the procedures involved, the nature of the family law jurisdiction, in which the Court enquires into the welfare and best interests of children, means that the public interest and children’s interest in the Court having all available relevant evidence about a parent’s mental health outweighs the parent’s right to privacy. It is one reason why s 121 of the Act restricting publication of family law court proceedings is in force. Obviously, material produced by Dr O that does not go to any relevant issue at Trial will not be admissible.
Whilst the Court should, and does, exercise close control over the issuing of subpoena as part of the application of the overarching purpose, I am not persuaded that in the context of these proceedings the subpoena to Dr O is inconsistent with the overarching purpose.
Ms Kazan also raised issues of how the children are coping with the transition and about whether or not Ms Vitalis has been candid with her treating practitioners and or Ms Kazan. These are not factors I give weight in reaching my decision.
The ICL took the position that she neither supported nor opposed the Application for Review, but noted that given the available information, and the other factors in the proceeding referred to in Justice Altobelli’s Judgment, but not canvassed here, that it seemed unlikely to significantly advance the case. However, it is not known what the subpoena may reveal and it is therefore not a proper basis on which to set aside an otherwise valid subpoena.
In these circumstances I am satisfied that, there being a genuine forensic purpose for the subpoena to Dr O, despite the likelihood that collateral sensitive irrelevant material will be produced, it should not have been set aside. Accordingly, that on that issue the Application for Review should be allowed and the Judicial Registrar’s decision set aside.
I consider Ms Kazan’s proposal restricting access to legal advisors at this time appropriate. I will limit copy access to the ICL at this time. If relevant material is included in the material provided by Dr O it may be necessary to vary that order so that it may be provided to other experts or disclosed to Ms Kazan. This will be a matter for pre-trial management by another judicial officer when the contents of the documents are known.
P Company
Ms Vitalis submitted that the subpoena to P Company is a fishing expedition.
Ms Kazan submitted that the subpoena to P Company is appropriate where a review of the documents which have been produced on subpoena have produced references to other medical practitioners who were not disclosed, and who Ms Kazan says should have been.
Ms Kazan points in particular to Dr R. He is a treating general practitioner who has treated Ms Vitalis, including by providing a mental health plan referral, but who was not disclosed and whose existence became known through documents produced from other sources.
In response to this issue Ms Vitalis gave evidence in her affidavit filed 12 August 2022 that [12(c)]:
[Dr R] – [Dr R] is a general practitioner. I have not attended upon [Dr R] in relation to any issues related to my transition. I attend upon [Dr S] for those matters and I have disclosed her details in the letter dated 1 June 2022. [Dr R] gave me a mental health care plan. I do not consider him a treating practitioner in relation to my mental health. [Dr R] is the family's general practitioner. I am aware that [Ms Kazan] attended upon him during the marriage. When [Ms Kazan] provided her list of treating practitioners in relation to her mental health, she did not list her general practitioner
I do not consider Ms Vitalis’ evidence in relation to Dr R assists her case. Her failure to disclose a treating general practitioner, and in particular one who has clearly engaged with the issue of her mental health, does unfortunately raise issues about the reliability of Ms Vitalis’ disclosure of her treating medical practitioners.
Ms Vitalis also points to the fact that Ms Kazan did not disclose her general practitioner. That is also inappropriate, but does not relieve Ms Vitalis of the obligation to make full disclosure.
In many cases the P Company subpoena would be a step too far, but each matter requires consideration on its own facts.
Where a party’s mental health is an issue in the proceedings, and where it appears that she has taken an approach to disclosure which raises issues about the selectivity and reliability of that disclosure, it may be appropriate to allow a subpoena such as that served on P Company to ensure that the Court has the best available evidence when considering the best interests of the children.
The ICL adopted a similar position to that in respect of Dr O.
On balance, and noting that the paramount consideration for the Trial Judge will be to make parenting orders in the children’s best interests and the interest the Court has in being as well informed about the true state of affairs as possible, I am satisfied that there is also a genuine forensic purpose for the subpoena to P Company it that it should not have been set aside, and that on that issue the Application for Review should also be allowed and the Judicial Registrar’s decision set aside.
I will allow both access and photocopy access to the parties’ legal representatives.
Costs
It follows that I should set aside the Judicial Registrar’s decision as to costs.
However, I am not persuaded that I should now reverse the costs order at this time as proposed by Ms Kazan, noting the provisions of s 117 of the Act and considering the complexity and sensitivity of the issues.
I reserve to the final hearing each parties costs of, and relating to, the subpoena to Dr O and to P Company and the Notices of Objection and the Application for Review.
Summary
For the reasons set out above I consider there is a genuine forensic purpose to each subpoena, that they should not have been set aside, that it is appropriate to grant the Application for Review, to set aside the Judicial Registrars orders, to allow access to the legal representatives only to Dr O’s records and photocopy access only to the ICL to Dr O’s records, and to reserve the questions of costs of the objections and this Application for Review to Trial.
I certify that the preceding forty-five (45) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 19 August 2022
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