Family law disputes may involve one or both parties requesting the medical and counselling records of another, particularly where the parties are arguing over parenting matters. One party may seek access to such records to argue that the other party has mental health issues which make them unfit to properly care for a child, or to support allegations of domestic violence.

These records are usually obtained by issuing a subpoena to the treating doctor, counsellor or other medical professional of the other party. Once a subpoena has been issued, the person subpoenaed will usually have 28 days to provide the requested documents directly to the Court. The other party has the opportunity to object to the documents being released to the party who issued the subpoena. In the case of medical and counselling records, this will usually be on the grounds that:

1. the records are privileged;

2. the release of the records is protected by public interest immunity;

3. the subpoena is too broad and amounts to a fishing expedition; or

4. the records are irrelevant or inadmissible.

The Family Court (as it then was) decision of Choat & Grednel [2018] FamCA 579 involved a father issuing a subpoena to the mother’s psychologist for the production of notes taken during the mother’s sessions. The father sought these records to support his contention that the mother had alienated the parties’ 12 year old child from the father. The mother objected to her psychologist records being released on the basis that they were confidential and protected under the public interest immunity. The mother had also made allegations of domestic violence against the father, and argued that the father may perpetrate further acts of domestic violence against her if the records were released to him. The Independent Children’s Lawyer appointed to the proceedings also sought access to the mother’s psychologist records.

The Courts have held that communications and documents between a patient and their health professionals, including clinical notes, although confidential, are not inherently protected from disclosure in family law proceedings. This was restated by Judge Watts in his decision in Choat & Grednel, before he addressed the mother’s objections.

Public interest immunity is a rule of evidence which restricts the disclosure of evidence where such a disclosure would be contrary to the public interest. For this rule to be invoked, the Court must find that the public interest in protecting the confidentiality of such evidence outweighs the benefit of the evidence being disclosed.

Judge Watts did not find that the public interest immunity prevented the mother’s psychological records from being released, nor was the release prevented because the records were confidential in nature.

Judge Watts did however find that the records in their entirety were not relevant to the parenting proceedings and allowed the mother to redact certain parts of the records which did not relate to her care of the child.

Choat & Grednel provides important guidance as to when psychological records may be relevant to family law matters concerning parenting and confirms that such records may be disclosed despite their confidential nature.

Any documents produced by way of subpoena are only to be used for the purposes of evidence in the proceedings for which the subpoena was issued. There are also strict rules regarding access to documents produced under subpoena, and the court generally only permits medical records to be viewed in the registry, to ensure that documents cannot be used for any other purpose or distributed unlawfully.

*Disclaimer: This is intended as general information only and not to be construed as legal advice. The above information is subject to changes over time. You should always seek professional advice before taking any course of action.*