· 2025-10-23T18:47:39+0000 · 829 posts

Counselling Records - Confidential but Not Untouchable: Court Subpoenas Despite ‘Protected Confidence’ Claim

In Woods & Holmes (No 3) [2025] FedCFamC1F 463, Justice Gill delivered one of the first detailed interpretations of the new protected confidences provisions under Division 1B of Part XI of the Family Law Act 1975 (Cth). The mother, supported by a counselling organisation (“C Organisation”), sought to prevent the production of her counselling records subpoenaed by the father, arguing they were protected confidences whose disclosure would cause harm. The Court carefully weighed the legislative purpose of safeguarding sensitive therapeutic communications against the judicial duty to access relevant evidence. In a nuanced ruling, Justice Gill found that while the communications qualified as protected confidences, the desirability of production outweighed the risk of harm, particularly given the central issue of the mother’s mental health and parenting capacity.

Facts

The parents were in ongoing parenting proceedings regarding their seven-year-old child, X, who currently lives with the mother and spends supervised time with the father due to past abduction concerns.
The mother received counselling from C Organisation, a family support service assisting parents affected by international child abduction and family violence.
The father issued three subpoenas: one to the mother’s former psychologist, one to her GP, and one to C Organisation.
The mother and C Organisation objected, claiming the records were protected confidences under ss 102BA–102BE Family Law Act 1975 (Cth).
The objections raised that disclosure would cause psychological harm, undermine trust in support services, and unfairly advantage the father who had previously abducted the child.

Issues

Whether C Organisation was a “professional service” providing a “specialist service in relation to family violence” under s 102BB(1)(b)(ii).
Whether the mother’s counselling communications were protected confidences under s 102BA.
Whether the Court should exercise its discretion under s 102BD to direct that the documents not be produced because likely harm outweighed the desirability of production, having regard to s 102BE(1)–(4).

Law

Statutory Framework

s 102BA — defines protected confidence as a communication made in a professional service under a duty of confidentiality.
s 102BB — defines professional service to include health services and specialist services relating to family violence or sexual assault.
s 102BD — allows the Court to direct that material not be produced, inspected, or copied if the protected confidence test is met.
s 102BE — governs when that discretion can be exercised; the Court must balance likely harm against the desirability of production, treating the child’s best interests as paramount.

Authorities and Guidance

Explanatory Memorandum (Family Law Amendment Bill 2023) — identifies the protective intent: to prevent perpetrators of family violence from “weaponising” sensitive therapeutic records.
Statutory Interpretation Principles — Courts must interpret new protective provisions purposively (see Project Blue Sky Inc v ABA (1998) 194 CLR 355).

Application of Law to Facts

1. Was C Organisation a “Professional Service”?

Yes.

Justice Gill found C Organisation clearly fell within s 102BB(1)(b)(ii) as a specialist service relating to family violence and also met the definition of a health service under s 102BB(3) ([16]–[24]).

It provided counselling, social work, safety planning, and emotional support for parents affected by international abduction and family violence.
The mother’s engagement with a social worker in a counselling capacity squarely met the “professional service” test.

2. Were the Communications “Protected Confidences”?

Yes.

The mother’s sessions with C Organisation were made in the course of professional counselling under an implied duty of confidentiality, satisfying s 102BA(a)–(b) ([25]–[28]).
Justice Gill recognised that confidentiality was fundamental to such counselling relationships.
✅ The records therefore met the definition of a protected confidence.

3. Should Production Be Prohibited Under s 102BD and s 102BE?

No.

Although the material was a protected confidence, the Court declined to prevent its production because the potential harm did not outweigh the evidentiary importance.

a. Likely Harm

The mother would likely experience mental distress if her counselling records were disclosed ([40]–[41]).
However, there was no evidence of harm beyond distress, and procedural safeguards (e.g., restricted access) could mitigate this ([47]).

b. Importance and Probative Value

The mother’s mental health and psychological resilience were central issues in determining her parenting capacity ([43]–[45]).
The records could illuminate both her vulnerabilities and her capacity to seek and benefit from support — a matter directly relevant to the child’s welfare.
Given that the mother had already filed a partial report from the same counsellor, the court held she had implicitly opened the door to related evidence ([43]–[44]).

c. Public Interest and Child’s Best Interests

While confidentiality serves a vital public interest, the child’s best interests in having all relevant evidence before the court carried greater weight ([52]–[53]).
The judge reasoned that accurate assessment of parenting capacity and risk is itself essential to the child’s welfare.

Judgment and Reasoning

Justice Gill held that:

“The limited identification of harm does not outweigh the desirability of producing evidence to the court of a matter of importance to the proceedings, being as to the mother’s psychological vulnerability and parenting capacity.” ([55])

The applications by the mother and C Organisation were therefore dismissed ([56]).

To minimise harm:

The mother had first inspection rights for 14 days;
The father could only access the material through legal representatives and could not retain copies ([Orders 4–5]);
Claims of privilege could still be raised later.

In effect, the Court struck a balanced middle ground — acknowledging the existence of protected confidences but affirming that confidentiality is not absolute in family law proceedings where the evidence bears directly on a child’s welfare.

Cited Paragraphs and Key Precedents

Statutory interpretation of “professional service” and “specialist service”: [16]–[24]
Identification of protected confidence: [25]–[28]
Harm–benefit balancing under s 102BE: [39]–[55]
Legislative intent: Explanatory Memorandum extracts at [19]
Procedural fairness and access safeguards: [47], [55]–[57]

Take-Home Lesson

“Confidentiality in family law is strong—but not invincible.”

The Woods & Holmes (No 3) decision demonstrates how protected confidence provisions operate in practice.

Courts will:

Protect therapeutic privacy where possible, but
Compel disclosure when the information is central to determining a child’s best interests or parenting capacity, and
Manage harm through controlled access rather than full suppression.

This case sets an early precedent that the new Division 1B provisions are not an automatic shield against subpoenas — each application demands a case-by-case balancing of harm, probative value, and child welfare.