CASE UPDATE: SUBPOENA ISSUED TO CHILDREN’S COUNSELLOR

Hastings v March [2019] FCCA 2548

In September last year, the court was asked to decide on whether a subpoena issued by the Father to his child’s counsellor should be allowed. The subpoena if allowed would require the counsellor to release to the court and the child’s parents copies of all counselling notes, reports, memos, advice and assessments conducted by the counsellor.

The counsellor to her credit objected to the subpoena on the grounds that it would undermine her therapeutic relationship with the child, and out of concerns the child would consider the disclosure as a breach of her trust.

The counsellor had already provided the parents a detailed report which had been put before the court. It was also open to the parties to put specific questions about the report to the counsellor should they require any further information or clarification as to the contents of that report. The court found under the circumstances that there was no relevant legal principle or issue that would warrant the material sought under the subpoena to be produced. That is, the subpoena was not going to produce information relevant to the issues before the court that wasn’t already available.

Subpoenas will not be allowed if they amount to a mere fishing expedition. For instance, if a party issues a subpoena without knowing what the contents would reveal, but hoping it might contain information helpful to their case. In this instance the court found the Father’s request was bordering on being a fishing expedition.

The court decided to restrain access to the documents because of the potential damage to the therapeutic relationship between the counsellor and the child. The court found it was in the child’s best interests that the relationship between the child and counsellor remained confidential.

The court also found that owing to the child’s autism and panic disorder, it would be potentially seriously detrimental for the father to possess the child’s counselling notes.

The court also acknowledged the requirement in section 69ZN of the Family Law Act that the court “is to consider the needs of the child concerned and the impact that the conduct of the proceedings may have on the child in determining the conduct of the proceedings.”

Parties need to proceed with caution when issuing subpoenas. A party who issues a subpoena could be liable for the legal costs of the other parties if it was issued improperly and thought needs to be given by all involved to the consequences of providing this information to the court and the child’s parents. Counsellors and other third parties should always obtain independent legal advice when served with a subpoena.