Relevancy of Medical Subpoenas in Transgender cases

25 JUL 2023


What is a subpoena and why is a subpoena issued?

A subpoena is a legal document issued by a court that requires a person to produce certain documents, attend court, or give evidence at a specific time and place. In the context of family law, a subpoena may be used to compel individuals or organisations to provide information or documents that are relevant to a family law matter, such as custody over a child, property division, or spousal support. For example, a subpoena could be issued to obtain financial records, bank statements, medical records, school records, or any other evidence that may be necessary to support or defend a claim.

In the outlined case, the two subpoenas issued to the surgeon and medical insurer were to retrieve Ms Vitalis’ medical records necessary to support Ms Kazan’s claim in their parenting proceeding.

A subpoena can be objected to by the person or entity who received the subpoena or any party involved in the proceeding if they have valid reasons to object to its enforcement. In this case one of the main reasons for the objection of the two subpoenas was the issue of relevance to the case.



The proceeding relates to a parenting dispute between both parties as to whether the children should continue to have supervised time with a transitioning parent. Initially, the Judicial Registrar agreed with Ms Vitalis and made Orders to set aside the subpoenas and made a cost order against Ms Kazan on the grounds that they were not relevant.

Ms Kazan subsequently filed an Application for Review to the Court.



The issue before the Court relates to whether two subpoenas filed by Ms Kazan in relation to Ms Vitalis’ surgeon, Dr O and medical insurer, P company, should be set aside pursuant to Ms Vitalis’ Notices of Objection.



Upon review, his Honour found that there was a genuine forensic purpose to each subpoena and sought to have the Judicial Registrars orders set aside and to allow access to the legal representatives and ICL only to Dr O’s and to P Company’s records.

The reason for this finding was when applying relevant legal principles as to the relevancy of the subpoena; the bar for establishing relevance is relatively low. The Court discussed that if a genuine forensic interest is demonstrated, even if that material is inadmissible, but serves the purpose of aiding “the preparation of a case or its the overall investigation, then the subpoena is a legitimate investigative tool”. Subsequently, his Honour considered that in any parenting proceeding, the mental health of any parent is potentially relevant to the extent that it may impact their parenting capacity. It is on this basis that his Honour navigated through the relevancy of the subpoena materials as to establishing a genuine forensic interest to this regard. Due to circumstances surrounding Dr O’s material in particular the complexity of the nature of the surgery, it was reasonably assumed that Dr O had engaged an independent mental health assessment on Ms Vitalis in order to satisfy criteria under the World Professional Association of Transgender Health Standards of Care Guideline. Additionally, his Honour was not persuaded on the objection to be upheld on privacy grounds considering that when enquiring on the best interests of the children, “all available relevant evidence about a parent’s mental health outweighs the parent’s right to privacy”. His Honour was satisfied that there was a genuine forensic purpose for Dr O’s subpoena despite the collateral sensitive material that would be produced.

In regards to P Company’s material, references were made in documents produced under subpoena to other treating practitioners that Ms Vitalis had not disclosed. To this regard his Honour reasoned that the paramount consideration for the Trial Judge would be to make parenting orders in the best interest of the children, and where a party’s mental health is an issue in the proceedings and where there are selectivity and reliability issues as to disclosure; it may be appropriate to allow a subpoena, similar to the one served to P company, to ensure that the Court has the best available evidence when making parenting orders in the best interest of the children. On this basis, his Honour was satisfied that there was a genuine forensic purpose for the subpoena to P company.


The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.


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