The issue before the court was whether the psychologist was entitled to immunity from the subpoena. Over a psychologist’s objections, the Family Court ordered treatment records concerning a child to be produced as potential evidence in a family law proceeding
Can a psychologist’s treatment records involving a child be subpoenaed for use as evidence in a family law proceeding? The court guardedly answered “yes” in Crawford & Sisinis and Another  FamCA 912.
The parents of a 12-year-old arranged for a psychologist to assess their child because he was not coping well with their separation. The parents agreed that the psychologist’s services would remain confidential and would not be used in family court proceedings.
The parents asked the Family Court to resolve a parenting dispute after the father became concerned that the mother was trying to alienate the child from him. Apparently seeking evidence to help her case, the mother subpoenaed the records of the three sessions that the psychologist had with the child. The psychologist objected on the ground that the mother had agreed that those records would remain confidential.
The issue before the court was whether the psychologist was entitled to immunity from the subpoena. The psychologist contended that public policy favored immunity. The psychologist argued that patients would be discouraged from obtaining necessary mental health services if they knew that records of their counseling sessions might one day be used in court proceedings.
The mother countered that public policy requires all relevant evidence to be made available to the court when it resolves a family dispute concerning children. She contended that the court’s duty to act in the best interest of the child required it to consider all evidence that would help it make the right decision.
To resolve the tension between those competing policies, the court examined Australian law. The Family Law Act prohibits a family counsellor from disclosing communications made during family meetings, but it does not immunize counsellors from complying with subpoenas for records. Moreover, the Evidence Act does not create a privileged relationship between a psychologist and a patient.
Courts have found that certain communications made during therapy are protected by public interest immunity. Those decisions have been limited, however, to statements made by sexual assault victims.
The court decided that Australian law does not establish a general principle of public interest immunity from the disclosure of a psychologist’s treatment records. The court noted that this case did not raise the question of whether disclosure should be denied on the ground that it would cause specific harm to a specific child. The psychologist expressed concern only about the general harm to the patient population as a whole, but identified no concern that this specific child would be harmed if his records were disclosed.
The court allowed the subpoena to stand but set limits upon the disclosure of the psychologist’s records. The court directed the psychologist to provide the records to the court. After reviewing the records, the court would decide whether they were relevant to the proceeding and would provide relevant records to the parents. The parents were ordered not to disclose those records to any other person who is not involved in the court proceeding.