Subpoenaing your child’s psycholigist in Family Law proceedings

by Michelle McDermott on March 31, 2016

Michelle McDermott

Over the years I have noticed an increasing prevalence of children meeting with mental health professionals following their parents’ separation. Sometimes it is because the children ask for help and sometimes it is as a result of one or both parents deciding the children would benefit from such a therapeutic relationship.

What happens, however, if the child’s parents end up in Court and one parent wishes to subpoena the mental health professional’s file?

In the recent Family Court decision of Crawford & Sisinis and Another [2014] FamCA 912, Justice Berman considered whether the parties should be permitted to inspect subpoenaed file notes that a psychologist had made relating to her counselling sessions with the child and the parents. The child in this case had attended upon the psychologist because she was sad and anxious following her parents’ separation.

The psychologist objected to the subpoenaed documents being inspected by the parties on the basis that the parties had previously agreed that her involvement with the child would not be used in future Family Court proceedings.

The psychologist’s barrister argued that the documents were confidential because of public interest immunity. It was argued that because psychologists usually undertake therapeutic counselling with a child with the belief that what they say is confidential, allowing these documents to be inspected and relied on in Family Court proceedings would have wide ranging consequences for the profession and the public. The risks were said to include discouraging parents from seeking counselling for their children and compromising therapeutic outcomes.

Justice Berman observed that whilst registered family counsellors are not able to disclose confidential information to the Court, and evidence of settlement negotiations between parties is also generally inadmissible, the ordinary psychologist/patient relationship does not usually attract public interest immunity.

His Honour held that in this case, the psychologist and the child’s psychologist/client relationship should not be protected by a claim of public interest immunity, stating that whilst the relationship was potentially important to the child, in the circumstances of the case, it did not have a wider application. His Honour also said that there was no evidence as to the effect on the child if any of the information was released, nor was there any basis to assume that she would be adversely affected if she learnt in the future that this had occurred. Accordingly, the psychologist’s notes were released for inspection.

If you have recently separated and you and/or your children need support, Armstrong Legal have a strong network of mental health professionals to whom we can refer both children and adults. Do not hesitate to contact our family law team for further information and advice.

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