WAINER & WAINER

[2020] FCCA 1393

FEDERAL CIRCUIT COURT OF AUSTRALIA

WAINER & WAINER [2020] FCCA 1393

Catchwords:
FAMILY LAW – Parenting – where father issued subpoena to mother’s treating GP – where father complied with rules in issuing and serving subpoena and filing notice to inspect – where mother agreed to interim consent orders for parties to have leave to inspect and copy subpoenaed documents and provide copies to family consultant for purpose of preparation of family report – where mother after the date for production of subpoena documents from GP and the interim consent orders filed notice of objection to subpoena and an application to inspect her medical file – Held mother out of time in accordance with rules to pursue notice of objection and application in a case to inspect – where not in the interest of justice to dispense with rule that provide a time limit for filing of objection and application – Held mother to pay costs of father thrown away because of her filing the notice of objection and application in a case.    

Legislation:

Family Law Act 1975 (Cth), s.117

Federal Circuit Court Rules2001, Pt. 15A, r. 1.06, Sch. 1

Applicant: MR WAINER

Respondent: MS WAINER

File Number: LEC 46 of 2020

Judgment of: Judge L. Turner

Hearing date: 22 May 2020

Date of Last Submission: 28 May 2020

Delivered at: Brisbane

Delivered on: 5 June 2020

REPRESENTATION

Solicitors for the Applicant: Mr O’Reilly of O'Reilly & Sochacki Lawyers

Solicitors for the Respondent: Mr Sochacki of Peter Sochacki Solicitor

ORDERS

1. That the mother’s Notice to Objection to Subpoena filed on 5 May 2020 is hereby dismissed.

2. That the mother’s Application in a Case filed on 5 May 2020 is hereby dismissed.

3. That the mother within 28 days pay to the father as directed by the father costs thrown away because of the dismissed Notice of Objection and Application in a Case in the sum of $4,413.

4. The matter remain listed for interim hearing at 2:00pm on 8 September 2020.

IT IS NOTED that publication of this judgment under the pseudonym Wainer & Wainer is approved pursuant to s.121(9)(g) of the Family Law Act 1975 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

LEC 46 of 2020

MR WAINER

Applicant

And

MS WAINER

Respondent

REASONS FOR JUDGMENT

Introduction

1. The parties are in the dispute as to the future parenting arrangements for their three children, X (9), Y (7) and Z (4 ½).

2. The parties are due to attend family report interviews later this month.

Issue

1. An issue has arisen as to whether the mother should have access to inspect the subpoenaed material provided by Dr A to determine if she will proceed with her objection to the subpoena.  

Evidence

1. In determining this issue regard has been had to:

   a)The material as marked on the court file with a red tick.

   b)The written submissions.

   c)Part 15A.1 Federal Circuit Court Rules 2001.

   d)Relevant legislation.

   e)Relevant authorities.

2. The parties are legally represented.

3. Cross examination did not occur.

4. Findings of fact are made on the balance of probabilities having regard to the evidence and in what follows statements of fact constitute findings of fact.

Relevant history

1. In determining this issue regard must be had to the relevant history:

   a)The father is aged 39 and is a public servant.

   b)The mother is aged 38 and is a professional.

   c)The parties were together for 16 years and married for 14 years until separation in August 2018.

   d)The parties currently live under the one roof with the parties sharing responsibility for the care of the children, although it is in dispute as to who is providing the primary care.

   e)On 30 January 2020 proceedings were commenced by the father for parenting arrangements and a property division.

   f)In the parenting proceedings the father seeks orders whereby the children live with the father and spend six nights a fortnight with the mother during school terms as well as holiday and special event time.

   g)In his supporting affidavit the father raises concerns as to the mothers mental health problems stating “at times, her illness has necessitated her being admitted to hospital for treatment and for her to require medication to assist her (to) manage her anxiety, depression and suicidal thoughts” ([25]) with the father citing examples of the effect of the mothers mental health on her ability to care for the children ([28]).

   h)In the accompanying Notice of Risk the father raises concern of risk to the children due to the mother having a history of depression and thoughts of suicide and where through periods of illness the mother has not been capable of caring for the children.

   i)On 6 April 2020 the father issued a subpoena to Dr A requesting “all clinical notes, test results, referrals, medical records and any other correspondence relating to the treatment of” the mother with the documents to be produced by 27 April 2020.

   j)On 9 April 2020 the mother served the father’s legal practitioners with a copy of the subpoena to Dr A.

   k)On 21 April 2020 the mother filed her response seeking parenting orders whereby the children live with the mother and spend six nights a fortnight with the father during school terms as well as holiday and special event time.

   l)In her supporting affidavit the mother denies ever attempted suicide or self-harming ([23]) stating that she has “suffered from depression on and off… which has never interfered with my day-to-day life, my work or functioning as the children’s mother and principal carer” ([25]) that she has been “diligent” in managing her health ([26]) and “has sought help, where necessary and taking the advice and medication prescribed for me by my GP Dr A” ([25]).

   m)The mother attaches to her affidavit a short medical report from Dr A dated 11 October 2019 addressed to “Whom it may concern” as to the mother being a patient in his practice and making comments about her mood and general well-being. 

   n)In her accompanying Notice of Risk the mother raises concerns about the children being at risk from the father due to his denigration and belittling of the mother in the presence of children, leaving a sick child unattended and prohibiting the children from seeing the mother.

   o)On 22 April 2020 Dr A answered the subpoena and produced a copy of his file to the court.

   p)On 28 April 2020 the father lodged the Notice of Request to inspect the subpoenaed documents produced by Dr A.

   q)On 28 April 2020 it was noted in the subpoena satchel that leave had been granted for the parties to view the subpoenaed documents.

   r)On 28 April 2020 at the first return date interim court orders were made for the parties to obtain a family report with Order (4) providing “that the parties have leave to inspect and copy subpoenaed documents produced to the court from the mothers General Practitioner and Region B Area Health Services and such documents be made available to the family consultant”.

   s)On 5 May 2020 the mother filed a Notice of Objection to the subpoena issued to Dr A on the basis that “the subpoena seeks the production and inspection of all my medical records, regardless of the subject matter of the medical attention I received by the medical practice whereas, the applicant has only placed my mental health is an issue in the parenting application to the court.  I object to the inspection of ALL of my medical records produced by Dr A and his medical practice.  The subpoena is a fishing expedition going beyond the medical issue raised by the applicant”.

   t)On 5 May 2020 the mother filed an application in a case seeking that leave for the father to inspect the medical records of Dr A be revoked and that an extension of time be granted pursuant to Rule 15A.14 permitting the mother to inspect the documents and to consider then filing a notice of objection to the inspection and copying of the medical records of Dr A.

   u)In the supporting affidavit the mothers legal representatives states:

   i)That on 28 April 2020 “the focus was on reaching agreement on a set of consent orders to move the matter forward, including the commissioning of the family report and other ancillary matters.  That was accomplished” ([4]).

   ii)“Because of the Covid 19 concerns, the issue of inspecting the documents produced by Dr A at this more became a non-issue” ([5]).

   iii)“In any event I have not had a reasonable opportunity to inspect the documents on behalf of the mother under rule 15A1.4(3) to decide whether an objection should be filed to either production or the inspection and copying” ([5]).

   iv)“The subpoena is cast wide and comprises a fishing expedition for medical records of the… mother… has nothing to do with the issues raised by the applicant in the parenting application.  The family report writer has been granted access to the subpoenaed material” ([6]).

   v)“I seek an extension of time to allow for the inspection of the documents produced by Dr A and to permit the objection to inspect/copy to be lodged.  A copy of the draft objection is attached hereto” ([7]).

   v)On 20 May 2020 the father filed his response to the application in a case seeking for it to be dismissed and for costs.

   w)The matter returned to court on 22 May 2020 where the parties were requested to provide written submissions.

The law

1. The legislative acquirements as to subpoenas in the Federal Circuit Court are set out in Part 15A Federal Circuit Court Rules 2001.

2. As to subpoenas for the production of documents the following rules apply:

   a)Rule 15A.02(1)(a) A court on the request of a party may issue a subpoena for production.

   b)Rule 15A.04(1) A subpoena requiring production may be returnable at a time fixed by the court.

   c)Rule 15A.13(1)(b) The issuing party must serve a copy of the subpoena on the other party at least 10 days before the day stated in the subpoena for production.

   d)Rule 15A.13(1)(c) The issuing party must file a notice of request to inspect in an approved form.

   e)Rule 15A.14(1) A person who objects to producing a document subpoenaed must notify the Registrar and the issuing party, in writing, of the objection and the grounds of the objection before the day stated in the subpoena for production.

   f)Rule 15A.14(2) If an issuing party seeks the production of a person’s medical records, the person may, before the date stated in the subpoena for production, notify the Registrar in writing that he or she wants to inspect the records for the purpose of determining whether to object to the inspection or copying of the document by any other party.

   g)Rule 15A.14(3) A subpoena that is the subject of a notice of objection must be referred to the Court or Registrar for the hearing and determination of the objection.

   h)Rule 15A.13(1) and Rule 15A.13(2) If a subpoena has been issued for the production of documents, a copy of the subpoena has been served by the issuing party on the other party at least 10 days before the production date for the subpoena and the issuing party files a notice of request to inspect in an approved form and where no objection has been made by the date required for production, the parties after that day may inspect the subpoenaed documents.

3. I now will consider the issue for determination.

Should an extension of time be granted to mother to inspect subpoena material from Dr A and for notice of objection to subpoena to proceed?

1. I find having considered the legislation, the evidence and the written submissions that an extension of time is not to be granted to the mother to inspect the subpoena material from Dr A and that the mother is unable to proceed with her Notice of Objection.

2. I make this finding based on the following:

   a)The father in his issuing of the subpoena to the mother’s treating health professional Dr A GP for the production of documents complied with the required legislation by:

   i)Issuing the subpoena in the correct manner to Dr A on 6 April 2020 (Rule 15A.02(1)(a)).

   ii)Obtaining a return date for the production of the subpoenaed documents from Dr A for 27 April 2020 (Rule 15A.04(1)).

   iii)Serving a copy of the subpoena on the mother’s legal representatives at least 10 days prior to the production date that being on the 9 April 2020 (Rule 15A.13(1)(b)).

   iv)Filing a notice of request to inspect the subpoenaed documents in the approved form on 28 April 2020 (Rule 15A.13(1)(c)).

   b)The mother was aware of the subpoena and the nature of the documents being sought from Dr A when served with a copy of the subpoena on 9 April 2020.

   c)The mother, whilst legally represented agreed to interim consent orders negotiated by the parties on the day of the first court event on 28 April 2020 for the parties to inspect and copy the subpoenaed records produced by Dr A and to provide copies of the documents to the family consultant.  

   d)The mother filed the objection to subpoena and the application to inspect the medical records on 5 May 2020, several days out of time as the time limit imposed by Rule 15A.14(1) and Rule 15A.14 (2) expired before 27 April 2020.

   e)There is no provision in the legislation to extend the time for the filing of a notice of objection to subpoena pursuant to Rule 15A.14(1) or filing an application requesting the inspection of produced documents filed pursuant to Rule 15.14(2).

   f)Whilst Rule 1.06 Federal Circuit Court Rules2001 may provide the court with a discretion to “dispense with compliance or full compliance with any of these rules at any time”, this discretion is only to be utilised where it is “in the interests of justice”.

   g)It has not been established in this matter by the mother that it is “in the interests of  justice” that the father not have access to the full medical record of the mother based on the following:

   i)The “To whom it may concern” letter produced by the mother from Dr A did not adequately address the concerns raised by the father as to the mother’s mental health in his supporting affidavit to the father’s initiating application.

   ii)The mother was aware of the subpoena on 9 April 2020.

   iii)The mother had ample opportunity to object to the subpoena or apply to inspect her file before 27 April 2020.

   iv)The mother on 28 April 2020 agreed to the father having access to the medical records by giving her consent to the interim orders for inspection and copying by the father.

   v)It is not uncommon in parenting matters for the full medical records of parties to be subpoenaed where there are concerns as to health issues that may impact on a party’s ability to effectively parent children.

   vi)Whilst the father in these proceedings has raised issues only as to mental health issues for the mother, physical and mental health issues are capable of being entwined and a production of documents as to mental health issues only may not provide an adequate picture of the mother’s overall health and how that may impact on her ability to care for the children.

3. I therefore dismiss the mother’s Notice of Objection filed on 5 May 2020 and the mother’s application in a case filed on 5 May 2020.

Costs

1. The father seeks costs in accordance with the rules.

2. I find that costs are warranted in this matter in accordance with section 117(2) Family Law Act1975 as the objection to subpoena and application in a case filed by the mother were doomed to fail (section 117(2A)(e)) and did indeed fail.

3. Further the father’s solicitor made attempts to circumvent the court process and therefore costs by offering suggestions as to how the mother’s records could be inspected and how copies of the relevant material could be provided to the family consultant ([17] father’s written submissions).

4. These offered suggestions were rejected by the mother.

5. In calculating the costs reference is made to Schedule 1 Federal Circuit Court Rules 2001.

6. Costs payable to the father by the mother are calculated in the sum of $4,413 as follows:

   a)Item 1. Opposing an application up to the completion of the first court event - $2,241

   b)Item 3. Interim hearing as a discrete event - $1,867

   c)Item 13.  Daily hearing fee for a short mention - $305

7. I therefore order that the mother pay to the father within 28 days the sum of $4,413 for costs thrown away by the father in respect to the mother’s objection to subpoena and application in a case. 

Future direction

1. The matter remains listed in September 2020.

I certify that the preceding twenty-two (22) paragraphs are a true copy of the reasons for judgment of Judge L. Turner

Date: 5 June 2020