February 17, 2023

Objection to medical subpoena in gender transition cases

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By Christopher Ragozzino

A Justice of the Federal Circuit and Family Court of Australia recently allowed a review from a decision made by a Judicial Registrar who rejected the inspection of medical documents produced under subpoena.

The background

The matter relates to the discrete issue of whether or not two subpoenae filed by the applicant, Ms Kazan, to the surgeon and medical insurer of the respondent, Ms Vitalis, should be set aside or released for inspection. The decision is one made in the context of Ms Vitalis transitioning from male to female.

The parties to the dispute have two children together, aged eight and four. A major issue before the Court is whether the children should continue to have supervised time with a parent who is going through transition. There is no suggestion that a transgender parent is less capable of parenting because of transition but rather the impact the transition process may have on the parent and the mental health of that parent, in this particular case.

The decision subject to review

At first instance, a Judicial Registrar agreed with Ms Vitalis, and set aside the two subpoenae, making a costs order against Ms Kazan. The main ground for Ms Vitalis’s objection was that the subpoenae were not relevant.

Ms Kazan applied to review that decision.

The decision on review

On review, the Court, constituted by Justice Smith, disagreed with the Judicial Registrar and granted leave for the parties‘ legal representatives and the Independent Children’s Lawyer only to inspect the documents produced.

The Court discussed the relevant legal principles to be applied, citing that the bar for establishing relevance for a subpoena is relatively low and that “if a genuine forensic interest is demonstrated… then the subpoena is a legitimate investigative tool”. Importantly, His Honour identified that “there is no dispute that Ms Vitalis’s mental health is therefore a relevant fact potentially in issue in the proceedings and a fact in respect of which a subpoena may issue”. Accordingly, it was appropriate to release the documents for inspection.

His Honour did identity that if, in the circumstances of a particular case, information sought went only to the physical process of transition, then privacy grounds in objecting to the subpoena may be relevant. In this case, however, with the main issue being the mental health of Ms Vitalis, and concessions by her legal representative on this point, the privacy ground was a not a proper ground for objection.

This costs of this decision were reserved.

Take-away points

  • The best interests of the children will be paramount consideration. In this case, the Court agreed with Ms Kazan that the genuine forensic purpose of the documents produced under the subpoena outweighed Ms Vitalis‘ right to privacy and the documents sought were relevant to the issues in dispute.
  • A party should consider filing an Application for Review if they believe a Judicial Registrar has made an incorrect decision. An Application for Review must be filed within 21 days after the order or decision is made.
  • That being said, practitioners and parties should be mindful of the FCFCOA Information Notice: Applications for Review published by the Court on 12 November 2021. Further information about this notice can be found here.

Vitalis & Kazan (No 2) FedCFamC1F 601