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Can things said to your counsellor be used in evidence in Family Law proceedings?

Thursday 30th May 2019

By: Melanie Wilson

Can things said to your counsellor be used in evidence in Family Law proceedings?

Almost all matters discussed during marriage or relationship counselling cannot be used in evidence in family law proceedings. This extends to what is said or discussed to a mediator or psychologist during the course of mediation or Family Dispute Resolution.  Sections 10E and 10J of the Family Law Act 1975 provides that such evidence inadmissible.

However, there are some circumstances where things said to a psychologist will be admissible in Court, in particular, things said by a party to their therapist of psychologist in the course of individual counselling or therapy.

A recent case of the Family Court in Choat & Grendel [2018]  determined whether notes taken by a psychologist during counselling could be admitted into evidence in proceedings, or whether they were protected on the grounds of confidentiality and/or public interest immunity. Public interest immunity can be generally described as a rule of evidence which operates to restrict evidence being given in proceedings where its disclosure would be against the public interest.  It relates to both documents and oral evidence.

Choat & Grendel were contested parenting proceedings relating to a child who was 12 years of age. There were allegations of parental alienation as well as family violence against the father. The Independent Children’s Lawyer issued a subpoena to the mother's clinical psychologist for her counselling notes. Both the mother and the psychologist objected on the basis of the documents being confidential and attracting a public interest immunity.  The mother was concerned that the father would use the notes against her outside of the Court proceedings.  The father sought to inspect the records on the basis that the notes would be relevant to the mother's mental state.

The Family Court found that the documents were confidential but that did not mean they were not relevant or inadmissible. The Court said that, ordinarily, a psychiatric/patient relationship does not attract a public interest immunity, but referred to recent parenting cases which held that a therapeutic counselling relationship might attract public interest immunity if the release of notes might victimise a parent or affect their parenting capacity.  

In particular, the Court referred to:
•    Jermyn & Carling [2012] , where the Court referred to balancing the need for the best available evidence to be before the Court (and the parties being afforded due process in knowing and identifying the evidence), against the desirability of allowing a person to pursue, obtain and receive therapeutic support and benefit from privileged and confidential counselling services.  In that case, the notes related to sexual abuse suffered by the applicant many years before the relationship commenced.  The Court found there were other means by which evidence could be obtained of the applicant's mental state (for example. by a Court appointed expert report, or in the form of letters to the GP and mental health care plans prepared by the psychologist, which documents which were already in the public domain).  The Court had regard to the distress that would be occasioned to the party whose notes were subject of subpoena, which would potentially impede her focus and concentration in the proceedings. The Court said that the apprehension of embarrassment and intrusion into her privacy was vast and would potentially prejudice any perception or reality of a fair trial.

•    Smith & Duke [2015] , where the parties engaged in therapeutic counselling after final parenting orders were made, where such counselling was intended to be confidential to aid the smooth functioning of the final orders.  The psychologist who provided the counselling was not a 'family counsellor' within the meaning of the Family Law Act and thus the usual prohibition on admissibility of things said during family counselling did not apply.  The Court found that the probative value of the evidence was low and that as a matter of public policy, where the parties agree to a process being confidential, that should not likely be the subject of exposure unless the possible advantage either to the child or to the proper of administration of justice was significant.

•    Merrill & Burt [2015] , where the Court said that whilst the general public interest in confidence in therapeutic relationships may not be a recognised category of public interest immunity, there was a specific interest in protecting the best interests of children by maintaining the confidence of a therapeutic relationship which improves a party's ability to parent the children.  The Court said that the Family Law Act consistently placed the children’s best interests at the forefront of any decision regarding parenting.  There was no evidence that the children's best interests would be served by breaking the confidentiality of the therapeutic relationship.

In Choat & Grendel [2018] the Court took a narrow view of the scope of the public interest immunity as it applied to confidential psychologist's notes, finding that the protection did not apply.  However, part of the documents subject of subpoena were found to not be relevant and the objection to the subpoena was upheld on that basis.

If you would like to find out more about how your confidentiality may be impacted in family law matters, please contact us.


Choat & Grendel [2018] FamCA 579 (30 July 2018
Jermyn & Carling (2012) FMCAfam 814
Smith & Duke [2015] FamCA 990
Merrill & Burt [2015] FamCA 159

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