Baldwin & Dean (No 2) [2025] FedCFamC2F 1206 (1 September 2025)

Note: The form of the order is subject to the entry in the Court's records.

Note: This copy of the Court's Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

IT IS NOTED that publication of this judgment by this Court under a pseudonym has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

1. This matter is about the parenting arrangements for X, born in 2022.
2. This aspect of the proceedings relates to protected confidence claims made by the paternal aunt Ms McGowan ("the paternal aunt") and by Ms B, a psychologist. Ms B has been served with a subpoena to produce documents issued at the request of the independent children's lawyer ("ICL"). These claims were brought under ss 102BD and 102BE of the Family Law Act 1975 (Cth) ("the Act").
3. This is a difficult matter involving allegations of substance abuse, family violence and neglect. On 12 February 2025 I made interim orders providing for X to live with the paternal aunt, who had been joined as a party to the proceedings and to have supervised time with the father and mother. I had the benefit of a family report prepared by Ms D dated 10 September 2024 and her oral evidence. Ms D has since prepared an updated report dated 5 May 2025.
4. This subpoena, filed on 29 July 2025, seeks the following records "the subpoenaed documents"):

2. All documents whatsoever held by you including but not limited to records, clinical notes and writings, investigations, records of referrals, medical reports, clinical notes, counselling notes, counselling recommendations, treatment cards, and all other documents in relation to therapy with respect to:

[Ms McGowan] (DOB: [in] 1986),

3. Copies of all text messages and/or emails to you in relation to:

[Ms McGowan] (DOB: [in] 1986)

1. On 6 August 2025 the paternal aunt filed a notice of objection to the subpoena on a number of grounds that may be summarised as:

(a) the paternal aunt's personal and private mental health resources are irrelevant to the matter;

(b) no party, including the Department of Communities and Justice ("DCJ"), has raised any issues of concern regarding her care of X;

(c) she sought the support of a psychologist for reasons unrelated to her care of X but the court proceedings and X coming into her care have made it more important for her to seek support;

(d) sharing this sensitive information would cause a greater risk to her mental health than the benefit of the information to be provided and would cause her distress; and

(e) she would cease engaging with her psychologist if the information is released.

1. Her notice of objection was supported by an affidavit filed by her on 25 July 2025, with paragraph 53 of that affidavit addressing the risk to her if this confidential material was to be produced:

I would seek orders to protect my private professional health endeavours. I do not believe this is relevant to the ICL or the matter at hand. I have openly advised that I saw a decline in my mental health, and this is understandable considering the sudden and important changes that occurred in our lives, along with the immediate pressures that were placed on me and me alone. This has not impacted my relationship or support with [Mr Baldwin], my capacity to parent my children, the capacity to provide a safe and loving environment to [X] or further risk of concern. My initial referral to seek a Psychologist was sought out for reasons unrelated to these circumstances and well before [X] came into my care. For these reasons my private conversations with my Psychologist would cause significant risk to me continuing my positive improvements due to simply abandoning this resource of help.

1. On 8 August 2025 Ms B filed a notice of objection to the subpoena for reasons that may be summarised as:

(a) the information requested is sensitive information told to her in confidence;

(b) the sessions she has conducted with the paternal aunt have been broad in nature and focussed on helping her to manage stressors and challenges, largely unrelated to the family law matter;

(c) the stressors and challenges are those that "most normal, competent adults struggle with and are unlikely to help the court" and she judges the paternal aunt to be of "sound mind"; and

(d) complying with the subpoena would strongly discourage the paternal aunt from seeking mental health care near and in the future and that would not ultimately be in the interests of the paternal aunt or the subject child.

1. The case came before me on 21 August 2025 for an interlocutory hearing in relation to the subpoena objections and for a hearing on the father's and mother's applications for variations to the orders for time with X. The paternal aunt appeared for herself, as did Ms B. The mother and the father were represented by their respective solicitors. The ICL appeared for herself.
2. The ICL argued that the subpoena served a legitimate forensic purpose in these proceedings for reasons which I will address below, and the mother supported the ICL's position. It was also their case that the importance of the subpoenaed documents outweighed any distress caused to the paternal aunt.
3. The paternal aunt and Ms B submitted that the Court should exercise its discretion under s 102BD to direct that the subpoenaed documents not be produced or inspected. I have not viewed any of the documents myself.
4. The father supported the paternal aunt's objections to the subpoena.
5. On 21 August 2025 I made orders that the subpoena objections be upheld and directed that the material which the subpoena to Ms B seeks to procure not be produced or inspected for the reasons that follow.
6. The questions for my consideration in relation to the subpoena are:

(a) Does the subpoena serve a legitimate forensic purpose?

(b) Should the Court direct pursuant to ss 102BD and 102BE that the subpoenaed documents not be produced or inspected because it is likely that harm would or might be caused to the protected confider if the documents were produced or inspected and the nature and extent of the harm outweighs the desirability of them being produced or inspected?

1. It is relevant to outline some of the background facts in this matter.
2. The father was born in 1982. He has another child from a previous relationship, Mr E, who is now 26.
3. The mother was born in 1999. The mother has a child from a previous relationship, F. F was born in 2017 and is currently seven.
4. The parties commenced living together in early 2020.
5. They separated on a final basis in the second half of 2021.
6. X was born in 2022.
7. X initially lived with the mother and had little time with the father. On 27 January 2023 X commenced living with the father.
8. On 24 February 2023 the father commenced these proceedings and on 12 September 2023 interim orders were made on an undefended basis for X to live with her father and have supervised time with the mother. Orders were also made requesting the DCJ to intervene in the proceedings and they declined to do so.
9. It is common ground between the parties that their relationship was characterised by domestic violence, although each party alleges that the other party was largely the perpetrator.
10. A provisional Apprehended Domestic Violence Order ("ADVO") was made for the protection of the mother in 2021 following an alleged attack during the mother's pregnancy with X. In late 2021 the father was charged with domestic violence offences and spent time in custody for these charges. In early 2023 the father was convicted and directed to enter into a community corrections order for nine months and a final ADVO was made for the protection of the mother for a further six months.
11. In late 2021 the mother was charged for an assault on her son F and an ADVO was made protecting F and the mother's parents.
12. It is also common ground between the parties that both parents have significant substance abuse problems and extensive criminal histories.
13. In late 2024 the father was admitted to G Hospital. The discharge summary from this admission includes a diagnosis of acute drug overdose and states: "He was brought to ED with reduced level of consciousness post-taking an overdose of drugs - methamphetamine and opioids. He slowly woke up and was discharged home to the care of his parents."
14. DCJ has had some involvement with this family. A risk assessment of the father's household was completed in April 2023 and found that X was at moderate risk. A further safety review was completed in June 2023 with an outcome of safe, with the case being closed in September 2023.
15. On 10 February 2025 the matter was listed before me for final hearing. The final hearing could not proceed because of the new evidence about the father's hospital admission and drug testing reports that were positive for drug use. On this date the paternal aunt was joined as the second respondent in the proceedings. I also made an order pursuant to s 91B of the Act requesting DCJ to intervene in the proceedings and to appear in person on 11 February 2025. DCJ declined to appear on this date.
16. On 12 February 2025 I made orders for X to live with the paternal aunt and have supervised time with both parents. I adjourned the proceedings for further mention on 16 May 2025 to await the outcome of DCJ's consideration of the s 91B request.
17. On 16 May 2025 I made orders allowing the paternal uncle, Mr H, to supervise the father's time with X and noted that DCJ had declined to intervene in the proceedings.
18. On 19 June 2025 the father filed an application in a proceeding seeking a variation of his time with X and on 18 July 2025 the mother filed a response to an application in a proceeding also seeking orders varying her time with X. These matters came before me for interim hearing on 22 August 2025, as well as the objections to the ICL's subpoena discussed above. The interim hearing is effectively part-heard as I have asked the ICL to make further enquiries with DCJ and with the supervised contact centre and will next come before the Court on 5 September 2025.
19. I will now discuss the two questions for my consideration in relation to the subpoena objections.

DOES THE SUBPOENA SERVE A LEGITIMATE FORENSIC PURPOSE?

1. Any subpoena that requires the production of documents is valid only to the extent it serves a legitimate forensic purpose. The relevant principles have been summarised in X Pty Ltd & Merhi [2015] FamCA 622 at [28]- [30] by McClelland J (as his Honour then was) as follows:

A subpoena must only be used for a legitimate forensic purpose. In considering this issue it is unnecessary for the party issuing the subpoena to establish actual relevance. However, it is necessary for the party seeking to rely on the subpoena to establish that the documents sought have "apparent relevance" to the issues in the substantive proceedings before the Court.

In that context, it is not enough for a party seeking to uphold a subpoena to show that the documents might lead to "a train of inquiry" which might assist his or her case. This is to be distinguished from the process of discovery where such a motive may be permissible.

While it is the case that the bar for establishing relevance is not high the party seeking to rely upon the subpoena must non-the-less establish that it is "on the cards" that the documents would bear upon and have relevance to the issues in the substantive case.

1. The ICL claims that the subpoena has a legitimate forensic purpose for the following reasons:

(a) The paternal aunt's mental health is of direct relevance to the court's final determination as she is both party to these proceedings and the current carer of X.

(b) The family report indicates that the paternal aunt has been working through anger related to the father's overdose, which may be relevant to her current relationship and attitude towards the father.

(c) The paternal aunt has been forthcoming to the court and the family report writer about a decline in her mental health following X entering her care. Material from her treating psychologist could inform the court as to whether this decline affects her parenting capacity.

1. The paternal aunt stated that the documents sought by the subpoena were largely irrelevant to this matter, with the reasons prompting her to seek the assistance of a psychologist being unrelated to her care of X. Ms B said "the vast majority of the information in my notes is unrelated to the parties involved in this family law matter".
2. The bar for establishing relevance is not a high one and, while the issue is finely balanced, I am willing to accept that it is "on the cards" that the subpoenaed documents would bear upon and have relevance to the issues in the substantive case (even though I consider that they are unlikely to be highly relevant).
3. Accordingly, I am not persuaded that the subpoena should be set aside on the basis of a lack of a legitimate forensic purpose.
4. There is some degree of overlap between the matters relevant in determining whether a legitimate forensic purpose for the subpoena exists and those relevant to the consideration of whether to decline to compel production of "protected confidences" under the new provisions of Division 1B of Part XI of the Act.

SHOULD THE COURT MAKE DIRECTIONS PURSUANT TO SECTION 102BD THAT DOCUMENTS NOT BE PRODUCED OR INSPECTED?

1. Division 1B of Part XI sets out a scheme for declining to compel production or admit into evidence "protected confidences". The provisions of this division were introduced pursuant to amendments to the Act which took effect on 10 June 2025.
2. A definition of a protected confidence may be found in s 102BA:

A protected confidence is a communication made:

(a) in the course of, or in connection with, a relationship in which one person (the confidant) is acting in a professional capacity to provide a professional service (see section 102BB) to another person (the protected confider); and

(b) in circumstances in which the confidant is under an obligation not to disclose communications made to them by, or in relation to, the protected confider (whether the obligation is express or inferred from the nature of the relationship)

1. A definition of a "professional service" is found in s 102BB:

(1) For the purpose of this Division, a professional service is any of the following:

(a) a health service mentioned in subsection (3) or (4);

(b) a specialist service in relation to:

(i) sexual assault; or

(ii) family violence;

(c) any activity prescribed by the regulations for the purpose of this paragraph.

(2) Despite subsection (1), an activity is not a professional service if it is prescribed by the regulations for the purposes of this subsection.

(3) An activity performed in relation to an individual is a health service if the activity is intended or claimed (expressly or otherwise) by the individual or the person performing it:

(a) to assess, maintain or improve the individual's health; or

(b) where the individual's health cannot be maintained or improved - to manage the individual's health; or

(c) to diagnose the individual's illness, disability or injury; or

(d) to treat the individual's illness, disability or injury or suspected illness, disability or injury; or

(e) to record the individual's health for the purposes of assessing, maintaining, improving or managing the individual's health.

(4) The dispensing on prescription of a drug or medicinal preparation by a pharmacist is a health service.

(5) To avoid doubt, a reference in this section to an individual's health includes the individual's physical or psychological health.

Have the pre-requisites for protected confidences been satisfied?

1. The proposition that Ms B's records are protected confidences in accordance with s 102BA was not seriously challenged. The ICL submitted that Ms B is not a "family counsellor" within the meaning of s 10D of the Act and is therefore "not protected from providing this information". That submission, while correct, did not assist the Court in its consideration of the protected confidence claims.
2. I am satisfied that:

(a) Ms B is a confidant within the meaning of s 102BA(a).

(b) As a clinical psychologist Ms B was acting in a professional capacity to provide a professional service within the meaning of s 102BB(1)(a).

(c) Ms B is under a professional obligation not to divulge communications between herself and the paternal aunt in accordance with the definition of protected confidence found in s 102BA(b). She referred to the confidential nature of her professional relationship with the paternal aunt in her submissions and her notice of objection. In Woods & Holmes (No 3) [2025] FedCFamC1F 463 ("Woods") at [27] Gill J observed in relation to this obligation:

The use of the term "obligation" implies that there is a legal requirement. That may be a requirement arising out of contract, or in equity, or in the application of a profession's binding ethical requirements, or as a result of the operation of particular legislation. It is an obligation that may be explicit or inferred. Again, in many cases it is unlikely to be contentious, but it is a requirement that may necessitate consideration both of the nature of the profession and the manner of engagement. In this case it may be readily inferred that the engagement of the mother with C Organisation for the purpose of receiving counselling was, in general terms, to be confidential.

1. Accordingly, the "gateway" described by Gill J in Woods which enables the Court to exercise the power in s 102BD to direct that documents not be produced or inspected has been satisfied.
2. A direction under s 102BD may be given by the Court on its own initiative or on application by the confidant (Ms B) or protected confider (the paternal aunt). In this case, both have sought such directions.

1. Section 102BE sets out the matters that must be considered by the Court in determining whether to direct that documents not be produced or inspected:

(1) The court may give a direction under section 102BC or 102BD in relation to evidence, or a document or part of a document, if the court is satisfied that:

(a) it is likely that harm would or might be caused (directly or indirectly) to the protected confider, or to a child to whom the proceedings relate, if the evidence were adduced or the document or part produced, inspected or copied; and

(b) the nature and extent of the harm outweighs the desirability of adducing the evidence or producing, inspecting or copying the document or part.

(2) For the purposes of subsection (1), harm may include, but is not limited to, the following:

(a) physical harm;

(b) psychological harm or oppression;

(c) mental distress;

(d) a detrimental effect on the other party's capacity to care for a child;

(e) financial harm.

(3) If the direction is being made in proceedings under Part VII, the court must regard the best interests of the child as the paramount consideration.

(4) The court must have regard to the following matters in deciding whether to make the direction:

(a) in relation to the evidence, or the document or part:

(i) its probative value in the proceedings; and

(ii) its importance in the proceedings; and

(iii) the availability of other evidence or documents, concerning the matters to which the evidence, or the document or part, relates;

(b) the likely effect of adducing the evidence, or producing, inspecting or copying the document or part, including the likelihood of harm, and the nature and extent of harm, that would or might be caused:

(i) to the protected confider; or

(ii) to a child to which the proceedings relate;

(c) the means available to the court to limit the harm or extent of the harm likely to be caused if the evidence is adduced or the document or part produced, inspected or copied;

(d) whether the substance of the evidence, or of the document or part, has already been disclosed by the protected confider or any other person;

(e) the public interest in preserving the confidentiality of protected confidences;

(f) whether the protected confider opposes the disclosure of the protected confidence or any part of it;

(g) whether a lawyer is representing the protected confider in relation to the proceedings;

(h) if the protected confider is a child aged under 18 - whether any of the following oppose the disclosure of the protected confidence or any part of it:

(i) a person who has parental responsibility (within the meaning of Part VII) for the child;

(ii) an independent children's lawyer who represents the interests of the child in the proceedings.

(5) Subsection (4) does not limit the matters to which the court may have regard in making the direction.

(6) The court must give reasons for making, or deciding not to make, a direction under this Division.

Will the likely harm from causing production outweigh the desirability of production?

1. The central question for my consideration under these provisions is whether the likely harm from causing production outweighs the desirability of production. In answering this question I am required to have regard to the matters set out in s 102BE(4), which are considered below.

The probative value of the evidence, its importance in the proceedings and the availability of other evidence concerning the matters to which it relates

1. It is difficult to evaluate the probative value of the material to be produced but I do not consider it to be high. Ms B has advised the Court in her notice of objection that her sessions with the paternal aunt have focussed on "helping her to manage stressors and challenges, largely unrelated to the family law matter", that these are stressors and challenges that "most normal, competent adults struggle with" and that the records generated from these sessions would be "unlikely to help the court".
2. There has been no allegation made by a party or the ICL that X is at risk in the paternal aunt's care. Neither party nor the ICL have sought orders that would disrupt the current arrangements for X to live with the paternal aunt.
3. The Court has invited DCJ to intervene in these proceedings and they have declined to do so. On 15 May 2025 DCJ wrote to the Court and I made that letter available to the parties. In that letter DCJ confirmed that they had conducted a visit to the paternal aunt's home and that her residence and family provide a safe environment for X.
4. The ICL speculates that the records may shed light on the paternal aunt's feelings about the father following his overdose and that, because she told the family report writer that X entering her care had put pressure on her and her family, her psychologist's notes may be relevant to her parenting capacity. I am not persuaded that, even if notes on these matters do exist, they would be significant in my assessment of facts in issue in these proceedings.
5. Ms B told the Court that there would be nothing in her notes or records that would cast doubt on the paternal aunt's parenting capacity.
6. I note that there is other evidence before the Court concerning the paternal aunt's mental health. In her updated family report Ms D said at [77]:

[Ms McGowan] spoke openly about the impact of having to resuscitate [Mr Baldwin] in [late] 2024 had on her mental health, and she described this event as a "trauma". [Ms McGowan] informed that she is slowly processing her feelings about this incident, and her anger towards [Mr Baldwin], and that she is on a waitlist to see a psychologist, to commence in June 2025. [Ms McGowan] reiterated that despite the stress that caring for [X] has had on her mental health, and on her family, in addition to the complex relationship that she has with [Mr Baldwin], her capacity to care for [X] or her children has not been hindered. However, without support and respite, she holds concerns that her mental health will continue to be impacted, and therefore, have an impact on [X]'s current care arrangements.

Additional concerns have been raised regarding [Ms McGowan]'s capacity to care for [X], as [Ms McGowan], by her own admission, has struggled with the mental load of caring for [X], supervising [X]'s time with [Mr Baldwin], supporting her children, and maintaining the household routine. [Ms McGowan] should not be condemned for raising her struggles, as this evidences that she has reflective capacity to consider that, without additional supports in place, [X]'s care arrangements are unlikely to be sustainable. [Ms McGowan], by raising these issues, lends support to her help seeking behaviour, which can be viewed as child focused. [Ms McGowan]'s family is, understandably, disrupted by [X]'s supervised time with [Mr Baldwin] occurring multiple times per week, which occurs in their home, and during their activities/homework/dinner time. It is understandable, as noted by [Mr McGowan], that the family have a physical reminder multiple times per week that there is something significant occurring within the family unit, whereby, [X] no longer lives with [Mr Baldwin]. While the orders stipulate that [Mr Baldwin] is to spend time with [X] in the presence of [Ms McGowan], it is understandable that [Ms McGowan] feels limited in dividing her time and attention with her children during the regular block time that [Mr Baldwin] is in her home with [X]. This is likely compounded by her unresolved relationship dynamic with [Mr Baldwin] due to his overdose in [late] 2024, which appears to have been an understandably traumatic event for [Ms McGowan]. It is imperative that supports are implemented for [Ms McGowan], both for her mental health, as to best assist her in processing her complex relationship with [Mr Baldwin], but to also support maintaining the current care arrangements for [X], as to prevent [X], [J], [K], and [L] being subject to a carer with deteriorating mental health issues.

1. In all of the circumstances, I consider that the probative value and importance of the subpoenaed documents in these proceedings is low.

The likely effect of adducing the evidence including the likelihood of harm and the nature and extent of that harm

1. In her notice of objection, affidavit and her oral submissions the paternal aunt claimed that she will be caused distress and embarrassment, and that she would be forced to cease obtaining psychological support if the subpoenaed documents are produced:
2. In paragraphs 8 and 9 of her notice of objection she says:

In seeking this Subpoena for my personal sensitive information, sharing these documents would cause a greater risk to my positive mental health journey than the benefit of the information to be provided in this family law matter. Having my personal and confidential records read by the parties and their lawyers and used in these proceedings, will leave me vulnerable and I am concerned that the likely consequence is that I may be less inclined to seek the professional assistance of a psychologist or engage fully in therapy in the future knowing that my confidential communication is likely to be seen by so many people involved in these proceedings and possibly discussed in open court.

I would immediately cease professional support should these documents be released, as they are sought to be used as a misguided tool against me in order to misrepresent my character which is not justifiable in this matter.

1. In her affidavit filed on 25 July 2025 she says at paragraph 53:

I would seek orders to protect my private professional health endeavours. I do not believe this is relevant to the ICL or the matter at hand. I have openly advised that I saw a decline in my mental health, and this is understandable considering the sudden and important changes that occurred in our lives, along with the immediate pressures that were placed on me and me alone. This has not impacted my relationship or support with [Mr Baldwin], my capacity to parent my children, the capacity to provide a safe and loving environment to [X] or further risk of concern. My initial referral to seek a Psychologist was sought out for reasons unrelated to these circumstances and well before [X] came into my care. For these reasons my private conversations with my Psychologist would cause significant risk to me continuing my positive improvements due to simply abandoning this resource of help.

1. There is also evidence before the Court that the paternal aunt is already under significant pressure because of her involvement in these proceedings and caring for X in addition to her three young children. In her report prepared for these proceedings dated 14 May 2025 the Court Child Expert observed at [31]:

[Ms McGowan], while wanting to ensure that [X] has safe, secure, and stable care arrangements, was open about the impact that [X] living with her family has had on her, and her family's functioning. [Ms McGowan] appears eager to support [X], however, showed reflective capacity about the mental toll it has had on her ([Ms McGowan]). Without supports in place, and respite for [Ms McGowan] and her family, [Ms McGowan] holds concerns that the current arrangements are not sustainable.

1. It is to the credit of the paternal aunt that she has been open with the Court about the pressure that caring for an additional child has placed on her family and I am satisfied that it is important for her to continue to receive professional psychological assistance and support.
2. Ms B told the Court that she would be concerned about the potential for distress and humiliation for the paternal aunt if the subpoenaed documents were accessed by the parties and the ICL. She also said that her compliance with the subpoena "would simply discourage my client from seeking mental health care now and in the future".
3. In relation to likely harm Gill J stated at [40] in Woods:

The question of likely harm is thereby reliant on inferences to be drawn from the circumstances and nature of the service. It may readily be considered that, where a party has engaged in confidential counselling to deal with the difficult circumstances that have brought about the litigation, the revelation of the content of those communications, and the provision of such to their adversary, is likely a source of distress.

1. In all of the circumstances, I am satisfied that production and inspection of the subpoenaed documents would be likely to cause the paternal aunt significant mental distress. Mental distress is specifically identified as a type of harm to be considered pursuant to s 102BE(2)(c).

Means available to the court to limit the harm or extent of the harm

1. In her submissions the ICL suggested that the Court or she could have first access to the subpoenaed documents. While I considered this option, I did not form the view that it would ameliorate the harm discussed above. I am satisfied that any disclosure would be likely to cause the paternal aunt mental distress.

Whether the substance of the evidence has already been disclosed by the protected confider or any other person

1. Neither Ms B nor any other person has disclosed the substance of the evidence.

The public interest in preserving the confidentiality of protected confidences

1. The Explanatory Memorandum to the Family Law Amendment Bill (2024) ("Explanatory Memorandum") provides the following guidance in relation to the Court's consideration of the public interest at page 131:

New paragraph 102BE(4)(e) ensures that the court must have regard to the public interest in preserving the confidentiality of protected confidences. This requires the court to consider whether the adducing or disclosure of the evidence would undermine the public interest in maintaining the integrity of the relationships within the scope of the provisions - for example, the public interest in maintaining confidentiality of doctor/patient relationships to encourage full and frank disclosure of information relevant to the treatment of medical and psychological conditions, and the taking of thorough clinical notes.

This measure upholds the right to privacy, under Article 17 of the ICCPR, and in particular the right to be protected against arbitrary interference with this right. The Bill provides a safeguard to protect confidential communications disclosed to professionals who have an obligation not to disclose the information, such as medical practitioners and counsellors. Where a direction is considered, or an application made, the measure will ensure that the confidentiality of these communications is not breached unless it is necessary to do so for the fair adjudication of proceedings.

1. In Benson & Jeffreys (No 2) [2025] FedCFamC1F 537 Bennett J discussed the potential for tension between the public interest in preserving confidentiality and the public interest in the Court making a decision about arrangements for children with all relevant information at [38]:

I also accept that there is a public interest in facilitating a parent to undergo therapy or seek mental health treatment without being concerned that details of the intimate and highly personal matters about which the confiding parent feels most vulnerable as a parent and which are unpacked to the professional of his or her choice, will be able to be accessed by their former partner, now their adversary, through the Court system. It is in the public's interest not to disincentivise personal growth and a desire by a parent to access mental health treatment. However, there is also public interest in the Court making a decision based on all relevant facts.

1. In all of the circumstances of this matter, I consider that there is significant public interest in maintaining the confidentiality of the subpoenaed documents.

Whether the protected confider opposes the disclosure of the protected confidence or any part of it

1. At page 131, the Explanatory Memorandum makes clear that the view of the protector confider are relevant to the assessment of harm:

New paragraph 102BE(4)(f) requires the court to have regard to whether the protected confider opposes the disclosure of the protected confidence or any part of it. The inclusion of this provision reflects that persons who have standing to make an application under this section go beyond the protected confider, and that the views of the protected confider are relevant to assessing the extent of the harm that may occur.

1. The paternal aunt opposes the disclosure of the protected confidence and tells the Court that such disclosure will cause her distress and embarrassment. I have taken into account her views and I consider them to be reasonable in all of the circumstances of this matter.

Whether a lawyer is representing the protected confider in relation to the proceedings

1. The paternal aunt is not represented by a lawyer in these proceedings. The Explanatory Memorandum clarifies at page 131 that this is relevant in "assessing the extent that a protected confider may have the capacity to challenge evidence put forward in the proceedings, and limit the harm they experience through utilising existing legal processes".

If the protected confider is a child under the age of 18, whether the disclosure is opposed by a person who has parental responsibility for the child or an independent children's lawyer who represents the interests of the child in the proceedings

1. This matter is not relevant to these proceedings.

1. Section 102BE(3) states that in determining whether to make directions under Part VII, the Court must regard the best interests of the child as the paramount consideration. As acknowledged by Gill J in Woods at [52] this can "point in different directions". It is true that the best interests of a child require the Court have before it all relevant evidence necessary to evaluate a child's best interests, but it is also true that the best interests of a child may require that the subpoena process does not prevent or inhibit support available to a carer.
2. In her notice of objection the paternal aunt indicates that she will cease her engagement with her psychologist if the subpoenaed documents are produced. In her updated report Ms D emphasised the importance of the paternal aunt obtaining supports "both for her mental health, as to best assist her in processing her complex relationship with [Mr Baldwin], but to also support maintaining the current care arrangements for [X], as to prevent [X], [J], [K], and [L] being subject to a carer with deteriorating mental health issues". The paternal aunt has endeavoured to implement this recommendation and it would be extremely unfortunate if a valuable therapeutic relationship for her is then damaged or lost through the production of records on subpoena. It is important that people seek help during challenging times in their lives. It seems to me that the cessation of the support she is receiving from her psychologist has the potential to negatively affect her capacity to care for X and her three children. This would be a regrettable outcome and not in X's best interests.
3. In this case it can be inferred that the assistance the paternal aunt is receiving from her psychologist will bolster and enhance her capacity to meet X's needs. It is in X's best interests that her aunt is supported to care for her and that her aunt's relationship of trust with her psychologist is not undermined through the subpoena process.
4. One of the important functions of the role of the ICL is to ensure that all available evidence is before the Court in relation to the best interests of a child and I have no doubt that in many cases it would be highly relevant to the best interests of a child to have the records of a parent's or carer's psychologist produced to the Court. In other cases, such records may be less relevant and it may be more important to preserve the therapeutic relationship between the confidant and the protected confider. This is a sad case in which the parenting capacities of both X's parents have been impacted by substance abuse and X has experienced much disruption in her young life. Having balanced the considerations outlined above I am persuaded that the desirability of producing the subpoenaed documents to the Court is outweighed by the likely harm that would be caused by their production.

1. In light of the matters referred to above the objections by the paternal aunt and Ms B resisting production on the basis of protected confidence are upheld and I direct that, pursuant to section 102BD(1) of the Act, the documents sought by the subpoena to Ms B not be produced or inspected. I also direct the Registry to destroy any documents already produced in answer to the subpoena.

I certify that the preceding seventy-eight (78) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Colquhoun.