Crawford & Sisinis and Anor 2014 FamCA 912

Parents of a child aged 12 years referred the child to an assessing psychologist following their separation as the child was not coping with the separation.  The psychologist asked the parents to sign a form agreeing that notes about sessions would remain confidential and would not become discoverable in any family court proceedings, and the parents signed.   The psychologist saw the child for three sessions.   The father then became concerned that the mother was trying to alienate the child from him.  The mother subsequently issued a subpoena to obtain the psychologist’s notes, and the psychologist objected on the grounds of the signed form.

The psychologist’s lawyer submitted Guidelines for Working with Young Children that had been issued by a national society of psychologists, where the guidelines indicated that the confidentiality of psychologists’ notes is limited.  The psychologist claimed a public immunity arguing that orders compelling the production of confidential notes documenting sessions between a psychologist and client would discourage others from participating in therapy and/or would compromise therapeutic outcomes.

The judge noted a general public interest principle that provision of all relevant evidence is required for the proper administration of justice when a Court makes its decisions.

The judge referred to principles established in a case (Hatton v Attorney-General of the Commonwealth of Australia 2000 FamCA 892) where the Full Court set out a number of examples where a Court might set a subpoena aside including: where the subpoena is for an improper purpose of obtaining discovery against a third party; where a party embarks on a ‘fishing expedition’; and where the subpoenaed material lacks relevance to the proceedings.  The judge noted that none of these topics were raised as the grounds of objection submitted by the psychologist who instead referred to a presumption of immunity due to a general principle of confidentiality.

The judge reviewed legislation about confidentiality.  The Family Law Act 1975 prohibits a family counsellor from disclosing communications made during family meetings, even if a client consents.   The Evidence Act 1995 does not establish a privileged relationship between a psychologist or psychiatrist and their client.  Certain communications made in a therapeutic context have been established as being protected by public interest immunity, related to therapy for a victim of alleged sexual abuse.  The judge concluded that confidentiality itself is not prioritised over a court gaining relevant evidence.

The judge noted that the psychologist was not objecting to the subpoena on the grounds of protecting the individual child involved in the case.

The judge found that there is no public interest immunity between a child and a psychologist.

The judge noted that the proper procedure for managing subpoenas requires documents to be handed to the judge who will determine whether the notes are sufficiently relevant to be passed on to legal representatives.

The judge ordered that the psychologist’s notes be received and passed on to legal representatives of parties for their inspection, and that these representatives be restrained from discussing the contents with any other person unrelated to the proceedings (restrained from disclosing).