Privacy vs. Parental Fitness: When Psychological Records Meet the Courtroom

📝 Introduction

In Benson & Jeffreys (No 2), the Federal Circuit and Family Court of Australia grappled with the tension between therapeutic confidentiality and the evidentiary needs of family law proceedings. At the heart of the dispute was a psychologist’s objection to the release of her notes concerning the mother, who alleged that the father had perpetrated family violence. Justice Bennett was called upon to determine whether these records—potentially sensitive and protected confidences—should be made available for inspection by the father's legal team in the lead-up to a final parenting hearing. The judgment stands as a key precedent in the post-2025 application of Division 1B of the Family Law Act 1975 (Cth), emphasizing the balancing act courts must perform between protecting confidential communications and prioritizing the best interests of the child.

📚 Facts and Issues

Facts:

• The parties, Ms Benson (mother) and Mr Jeffreys (father), are in ongoing parenting proceedings concerning their children, X (11) and Y (9).
• The mother’s treating psychologist, Ms N, produced documents in response to a subpoena issued by the Independent Children's Lawyer (ICL).
• Ms N objected to the release of these documents to the father, citing obligations under the MARAM Framework (Multidisciplinary Risk Assessment and Management) and concerns over disclosing sensitive notes to an alleged perpetrator of domestic violence.
• The documents had previously been partly disclosed during earlier proceedings, and no specific new harm was articulated regarding their further release.
• The children currently live with the father under interim orders, with the mother’s time being supervised.

Legal Issue:

Should the Court uphold the psychologist’s objection to disclosure of therapeutic records on the basis of “protected confidences,” or should the father’s legal team be granted access in the interests of justice and the children’s best interests?

⚖️ Rule (Law Applied)

The Court applied Division 1B of Part XI of the Family Law Act 1975 (Cth), introduced in June 2025, specifically:

• s102BA: Definition of protected confidence.
• s102BB: Definition of professional service.
• s102BC: Power to exclude evidence that discloses protected confidence.
• s102BD: Power to limit production, inspection, or copying of documents involving protected confidences.
• s102BE: Criteria for making a direction—especially the requirement that harm must likely result from disclosure and that the best interests of the child are paramount.

🔍 Application (Reasoning and Analysis)

Justice Bennett accepted that:

• The psychologist (Ms N) was acting in a professional capacity under the Act, and her notes met the definition of protected confidence under s102BA.
• Ms N had raised the MARAM framework as the basis of her objection but failed to demonstrate specific or likely harm to the mother or children from disclosure, as required by s102BE(1).
• The notes held probative value and were important to assess the mother’s mental health, particularly given expert concerns that her conduct may pose an unacceptable risk to the children.
• There was no evidence from the mother or Ms N substantiating potential harm from disclosure.
• Some of the records had already been disclosed in response to an earlier subpoena, undermining the confidentiality argument.
• The ICL, while acknowledging public interest in protecting therapeutic relationships, emphasized that transparency and fairness in parenting decisions required disclosure in this case.

The Court ultimately dismissed the psychologist’s objection, but placed restrictions on the father’s access:

• He may only view the documents in the presence of his legal representative, and
• No copies may be taken.

📖 Judgment and Precedents Cited

Judgment:

• The objection to inspection was dismissed.
• Inspection granted to father’s legal team, with safeguards to limit harm and uphold confidentiality principles.
• Children's best interests were held to be the paramount consideration under s102BE(3).

Reasoning:

• No evidence of actual harm was presented by the psychologist or mother.
• Disclosure was already partly made previously, weakening confidentiality.
• Therapeutic notes were relevant to critical questions of parenting capacity and alleged alienation.
• The public interest in testing evidence overrode the limited and unsupported concerns about disclosure.

Precedents & References:

• Benson & Jeffreys [2024] FedCFamC2F 1158 (unpublished)—Registrar Conlan’s finding that the mother posed a risk due to possible coercive control.
• Family Reports by Ms Q (30 Oct 2024 and 11 June 2025) highlighting lack of progress in the mother’s therapeutic journey.
• Explanatory Memorandum to the Family Law Amendment Bill 2024, confirming that psychologists’ notes fall under protected confidences.

💡 Take-Home Lesson

This case underscores a vital principle in Australian Family Law: while therapeutic confidentiality is important, it does not override the paramount importance of children’s best interests in parenting proceedings. Where a party chooses to rely on a professional’s evidence, such as that of a psychologist, they implicitly open the door to scrutiny of that evidence. Unsubstantiated claims of harm or reliance on professional guidelines like MARAM are insufficient to block disclosure. Legal professionals must prepare to balance protection of sensitive information with transparency and procedural fairness, especially when the stakes involve the welfare of children.