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Can I Object to a Subpoena of Psychologist Records?

In the recent Federal Circuit Court matter of Douglas & Mauldron [2015] FCCA 2217, the Mother and the institution subjected to a subpoena (Benevolent Society) objected to the production of the subpoena, on the basis that it would contain “sensitive” information and could have “serious repercussions” for the safety of the Mother and the children if the information was to be made available to the Father.

The matter relates to a parenting dispute, wherein the Mother seeks sole parental responsibility of the parties’ three children and that there be no contact between the children and their Father. At the time of the hearing the Father was held in an immigration detention centre as a result of criminal convictions for offences against children under the age of 16 years. He was not represented at the hearing.

The Mother and children attended upon the Benevolent Society for the purposes of therapeutic counselling and had, in the course of that counselling, disclosed details of serious allegations of abuse and family violence perpetrated by the Father upon the Mother and on occasions, the children.

The Independent Children’s Lawyer issued a subpoena to the Benevolent Society seeking production of “…all files and documents held by you, including but not limited to clinical notes, file notes and writings, appointment dates and reports in relation to [the parents and the three children]”. The Benevolent Society objected to the subpoena, on the basis that the documents “contain(ed) allegations against the Respondent (Father) made in confidence to enable child welfare services to be provided. Disclosure of these allegations to the Respondent may have repercussions”. The Benevolent Society also objected to the copying of the documents on the basis that the information was “sensitive”. The Mother supported this position.

The Court found that the Mother’s objections were “significantly founded upon the proposition that the production of documents would reveal allegations…of abuse and family violence” and subsequently contact details, which would alert the Father to the location of the children and the Mother.

In reaching a determination the Court noted that the Mother was obligated, as the Applicant in the proceedings to make full disclosure of the evidence relevant to the issues that were disputed, of which the material held by the Benevolent Society would be relevant to the proceedings and the Mother was obligated to disclose that material under Sections 67Z and 67ZBA of the Family Law Act 1975.

The Court considered that the “obligation to enable appropriate evidence about the allegation to be obtained”…and that “The release of information as sought by the subpoena would further that purpose”. On that basis the Court made the following orders:

  • The parties be at liberty to inspect the material produced under subpoena by the Benevolent Society, subject to the following conditions:
    • The material is not to be copied.
    • The Solicitor for the Mother and the Mother have first right of first inspection and be at liberty to redact information pertaining to the Mother’s address, personal details or contact information.
    • The Father be supervised by a member of Court staff at all times when viewing the subpoena material.

Image Credit – Ragsac ©

Written by Rhiannon Noble on April 10, 2017

Rhiannon’s experience has enabled her to develop a particular interest in parenting matters, including those that involve relocation, mental health and substance abuse issues. She is also a capable property lawyer and appreciates how mental health and substance abuse issues can have a very personal impact upon her clients, and how that may in turn effect the division of assets. View Rhiannon's profile

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