In family law proceedings, subpoenas are used by parties to obtain information from third parties regarding the parties in the proceedings. For example, in financial matters where a party is refusing to provide disclosure, subpoenas may be issued to places such as banks to obtain a party’s bank statements. Subpoenas are often issued in parenting matters for the purpose of understanding the other parties parenting capacity and may be issued, for example, to medical practitioners or the police.
In the recent case of Vitalis & Kazan, a parenting matter, Ms Kazan had the following subpoenas issued and served on Ms Vitalis’:-
- surgeon Dr O; and
- medical insurer P Company.
Ms Vitalis objected, and a Judicial Registrar made Orders setting aside the two subpoenas. Ms Kazan filed an Application for Review.
Background
Ms Vitalis was undergoing gender transition and was previously ordered to provide a list containing all treating practitioners in relation to her transition and her mental health. While Ms Vitalis did provide a list of medical practitioners, Ms Kazan’s position was that Ms Vitalis did not make full disclosure in relation to her list of medical practitioners.
The subpoena to Dr O was to access information relevant to Ms Vitalis’ mental health noting it was likely that as part of her transition, Ms Vitalis mental health was assessed by Dr O. The subpoena to P Company was to gain a better understanding of the full list of Ms Vitalis’ medical practitioners.
Legal principles
A subpoena must be relevant to the Court proceedings. In parenting proceedings, the children’s best interests are the paramount consideration and a parent’s mental health is therefore potentially relevant to the extent that it may impact on parenting capacity.
Dr O
Ms Vitalis objected to the subpoena to Dr O on the basis of relevance. Her position was that the subpoena was a “fishing expedition”.
Ms Vitalis’ solicitor 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 of the Court, that there is a sufficient apparent connection.
Despite the concession Mr Vitalis maintained the objection firstly, on the grounds of privacy and secondly, on the basis that the Court should not control the use of subpoena in pursuance of the overarching principles in the legislation and rules. The Court held that whilst privacy grounds would be relevant if the information sought went only to the physical process, because it was conceded that there is a real possibility of a mental health assessment, and therefore a genuine forensic purpose, privacy was not a proper ground for objection. The Court stated that while Ms Vitalis’ position is understandable, the nature of the family law jurisdiction in which the Court enquires into the welfare and best interests of the 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.
The Court further held that in the context of these proceedings the Subpoena to Dr O is not inconsistent with the overarching purpose.
P Company
Ms Vitalis again considered that Ms Kazan’s subpoena to P Company was a fishing expedition. Ms Kazan’s position was that the subpoena was appropriate as a review of the subpoenaed documents showed other medical practitioners that Ms Vitalis had not previously disclosed, including a doctor who had treated Ms Vitalis and provided a mental health plan referral. The Court held that in many cases, the P Company Subpoena would be a step too far, but each matter requires consideration on its own facts.
The Court held that there was a genuine forensic purpose to each subpoena and that they should not have been set aside and allowed access to the material.
If you’re currently going through family law proceedings and require assistance, contact one of our experienced family lawyers today.
