October 2018 Family Law Case Watch

By Prue Hawkes & Stephanie Ordanoska

The case of Choat & Grendel [2018] FamCA 579 highlights a question often asked by family law clients in circumstances where counselling notes are requested to be produced. That is whether the confidentiality of the therapist/patient communications should be protected or excluded from production in Family Law proceedings. In this particular case, the Court considered whether it is appropriate to exclude certain parts of such material in a family law case and provided some clarification as to when such an outcome would be appropriate.

In this case the father and Independent Children’s Lawyer sought to obtain evidence relating to the mother’s mental health by way of issuing subpoena for the mother’s counselling notes. The father alleged that the mother had alienated the child from him and wished to learn more about the mother’s past to understand her mental status. The subpoena was issued in anticipation of a Final Hearing to determine parenting proceedings regarding a 12 year old child. The mother alleged that she was the victim of family violence and cybercrime perpetrated by the father. The mother feared that the father might harm her after reading the subpoenaed documents, or otherwise use the information against her. The mother objected to the release of the subpoenaed documents on two grounds, namely:

  1. That communications with her psychologist were confidential; and
  2. That the details of the trauma suffered by members of her family, incidents that occurred in high school and her residential address and telephone number were irrelevant and inadmissible as evidence.

Earlier cases have addressed the issue of confidentiality of communications between parties and their health professionals and have established that they are not ordinarily protected in legal proceedings, despite being inherently confidential. The differing views adopted in these cases were considered in the case of Choat & Grendel.

As his Honour, Judge Watts, notes, “there is no doubt that the communication between the mother and her therapist is confidential”. This assertion is commonly known by people in the community and is true of all health professional/patient type communications. Most information that is shared with health professionals will be confidential and is prohibited by law from being shared with anyone, except in limited cases where there is a greater need to protect the safety of the patient or another member of the community.

When considering confidential information not attracting any protection in legal proceedings, there is always the discussion of whether such communications should attract “public interest immunity” and therefore be inadmissible in legal proceedings (R v Young [1999]; Feinster & Feinster and Anor [2006]). That is the community or public interest in protecting such information outweighs the benefit of it being released.

Two significant and contrasting views were highlighted by his Honour Watts J in this case when considering the question of “public interest immunity” as a reason to protect private counselling notes from being admitted as evidence in a family law parenting matter.

The first was that of Spigelman CJ in R  v Young, a criminal case, where the Court found that communications between a sexual assault victim and a therapist did not attract public interest immunity. Spigelman CJ held that, in order to establish public interest immunity, the “requisite level of community acceptance” must be achieved “… entitling treatment that differs from other confidential relationships”.In that case, Spiegelman CJ determined that the requisite level of community acceptance had not been achieved such that those communications would be treated differently. The Legislature has since provided for protection of such communications, although there is no corresponding law in family law proceedings.

In the matter of Merrill & Burt [2015] Cronin J indicated that communications between a mother and her therapist that improved her ability to parent her children could be capable of attracting public interest immunity for the primary purpose of the best interests of the children. Cronin J suggested that unless evidence is produced to show that “children are at risk such that their best interests would be served by breaking the confidentiality of the therapeutic relationship”, the information should attract public interest immunity.

In the present case of Choat & Grendel, Watts J adopted the view expressed in R v Young focusing on community acceptance and evidentiary material as opposed to the centralised view expressed by Cronin J relying on the best interests of the children.

Watts J did not find in the case of Choat & Grendel that there was the necessary level of community acceptance surrounding the matter nor was there sufficient evidence to render the counselling notes inadmissible in their entirety. It was held that the mother’s counselling notes should not be excluded from the proceedings simply because they were of a confidential nature.

It is important to note that the primary consideration in parenting matters is the best interests of the child. It is a distinct principle of family law and it would be considered in all parenting matters in addition to other general principles adopted.

Notwithstanding the decision of Watts J regarding the issue of public interest immunity for the release of the whole subpoenaed document, his Honour found that certain parts of the material were not relevant to the parenting concerns at hand and the mother was therefore allowed to redact certain notes in the material.

Evidence such as counselling notes must be relevant to the issues presented before the Court in order to be admissible. If the evidence cannot “rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding” it would not be relevant to the case (s55 Evidence Act 1995 (Cth)).

Despite the evidence being relevant, the judge does have the power to deny evidence being admitted if its significance to the case is outweighed by a prejudicial impact to a party (s135 Evidence act 1995 (Cth).

Those parts of the counselling notes relating to the mother’s experiences in high school and the mother’s family members were not relevant to any issue in the proceedings in relation to the mother’s ability to care for her child. As such, the mother was allowed to remove those parts and was also allowed to redact any reference to her mother’s current address and telephone number.

This recent family law case provides that information being legally confidential will not suffice in protecting it from being exposed in family law proceedings. Family law courts are flexible in accepting evidentiary material in order to understand and successfully resolve parenting matters involving children. In fact, the court is willing to assist a party in protecting particular aspects of evidentiary material in order to render the remaining relevant material admissible.

We hope that our October 2018 Case Watch has provided you with some clarity about this vexed question.

If you have recently separated or have a Family Law enquiry, please contact us on (02) 9437 0010 or enquiries@familylawyersdw.com.au to discuss your matter in complete confidence. We are conveniently situated in St Leonards on Sydney’s Lower North Shore and have a team of experienced and caring professional family lawyers available to help you.

These posts are only intended as an overview or comment on current issues that may interest you and are not legal advice. If there are any matters that you would like us to advise you on, then please contact us.

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