Benson & Jeffreys (No 2) [2025] FedCFamC1F 537 (13 August 2025)

1. If in any proceedings there are allegations of family violence and the provisions of section 102NA of the Family Law Act 1975 (Cth) apply (see attached Family Violence Information Sheet), any unrepresented party will not be permitted to personally cross-examine the other party/parties.
2. Affected unrepresented parties may apply to the Commonwealth Family Violence and Cross-Examination of Parties Scheme ("the Scheme") for representation but any such application must be made at least 12 weeks prior to the final hearing.

1. Further information about the legislation and the Scheme can be found at Part 4 of the attached Family Violence Information Sheet.

1. If s102NA applies and a party becomes unrepresented after trial directions have been made, that party is required to promptly advise the Court.
2. Section 114Q of the Family Law Act 1975 (Cth) provides that it is an offence punishable by imprisonment for up to one year to communicate to the public any account of family law proceedings which identifies the parties, witnesses or other people concerned with the proceedings, unless specifically authorised by the Court.

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. The mother's treating psychologist, Ms N, objects to documents produced by her pursuant to a subpoena duces tecum being released to, or inspected by, the father pursuant to the protected confidences provisions in the recent amendments to the Family Law Act 1975 ("the Act") which came into operation on 10 June 2025. I pronounced my Order which determined this dispute on 23 July 2025 and said that I would deliver my reasons subsequently. These are those reasons.
2. The substantive proceedings before the Court concern parenting arrangements for Y (aged 9 years) and X (aged 11 years). Pursuant to interim orders made by Senior Judicial Registrar Conlan on 19 August 2024, the children reside in the care of their father who has sole parental decision making responsibility and the mother has three hours of supervised time per week. I understand that the need for supervision is to protect the children against ongoing parental conflict, particularly the alleged attempts by the mother to vilify the father to the children and undermine their relationship with him. Senior Judicial Registrar Conlan, who ordered the supervision arrangement, noted in her reasons that:[1]

[81] On the untested evidence before me, I am concerned there is a risk the Mother may be engaging in coercive control, primarily through systems abuse. I am concerned the Mother may be seeking to undermine and impede the Father's relationship with the children and to otherwise characterise him as a pariah within the children's community, including their school. I am concerned she is motivated not by a fear of him as a risk to her safety, but with the aim of both controlling him through inhibiting his capacity to be able to access the children and also through causing him such professional embarrassment and personal distress that she may succeed in driving him away altogether.

1. The mother and father separated in 2015. At the time of separation X was two years old and the mother was pregnant with Y. The first set of parenting proceedings were instituted by the father in 2016 following the mother having unilateral removed the children to Adelaide. Those proceedings were resolved by a final order sought and made with the consent of the parents on 20 August 2019. The order was not supported or opposed by the Independent Children's Lawyer. That Order provided that the children live week about with the parents. Of that arrangement the mother deposed in her affidavit made on 18 May 2025:
   1. On 20 August 2019, Final Parenting Orders were made by consent that provided, inter alia, for a week about arrangement for the children commencing on 30 August 2019, and equal shared school holiday time.
   2. Despite the Orders being made by consent, I was concerned that an equal shared time arrangement was not in the best interests of the children. Unfortunately, I felt that I had no other option at the time but to consent to those Orders in circumstances where I had a change of barrister at the last minute and I was not satisfied with the representation. I felt pressured and coerced into signing Orders that I did not genuinely feel were in the best interests of the children. I was physically and emotionally exhausted, and financially depleted after approximately three and a half years of protracted litigation.
2. Ms N has been the mother's treating psychologist since 2017 and was her treating psychologist when the first final parenting order was made on 20 August 2019.
3. Ms O of Southern Family Law has been the Independent Children's Lawyer throughout the parenting dispute. She was appointed in the first parenting proceedings on 30 May 2017 and in these second parenting proceedings on 8 February 2024.
4. This second set of proceedings was commenced by the mother on 22 December 2023, by which time the week about arrangement previously ordered had broken down. Initially the mother sought that the father undertake parenting courses, that the children live with her and spend alternate weekends with the father. The father sought initially sought a return to the week about arrangement. Each parent has since amended their position. Now the father seeks_, inter alia,_ sole responsibility for making long-term decisions for the children, and, if the Court finds that the mother poses an unacceptable risk to the children, that the girls' time with the mother be restricted to telephone time of 15 minutes twice a week and on special occasions, and 3 hours supervised face to face time each week, with a review of time after 12 months. If the Court finds the mother does not pose an unacceptable risk, the father seeks that the children have telephone time with the mother for 15 minutes once per week and spend time with the mother on a gradually increasing basis beginning with one weekend night a fortnight and moving to three nights a fortnight over the weekend in 2027 with half school holidays. The mother seeks, inter alia, sole decision-making responsibility, that the children live with her and spend alternate weekends and half of school holidays with the father.
5. The matter was placed in my docket on 4 February 2025 and is set down for final hearing before me commencing 15 September 2025 (estimated to take 8 days).
6. The matter has attracted a number of court events, the dates of which are as follows::

In previous proceedings MLC11343/2016 Mr Jeffreys & Ms Benson:

(1) First mention (duty list) before Judge Wilson (as his Honour then was) on 8 February 2017;

(2) Directions hearing before Judge Wilson on 12 April 2017;

(3) Interim defended hearing before Judge Wilson on 18 May 2017 with judgment delivered on 30 May 2017;

(4) A further directions hearing before Judge Wilson on 26 September 2017 and transfer to the Family Court of Australia (as this Court then was)

(5) A first return date before Registrar Lethbridge on 11 December 2017;

(6) A subpoena hearing before Senior Judicial Registrar Sudholz on 5 September 2018;

(7) A duty list hearing before Senior Registrar Fitzgibbon on 6 December 2018;

(8) A case management hearing before Justice MacMillan on 1 March 2019; and

(9) Two days of a final defended hearing before Justice MacMillan on 19 and 20 August 2019.

(1) An interim defended hearing before Senior Judicial Registrar Conlan on 8 February 2024;

(2) A further interim defended hearing before Senior Judicial Registrar Conlan on 19 March 2024;

(3) A mention before Senior Judicial Registrar Conlan on 2 April 2024;

(4) A second return date before Judicial Registrar Dixon on 5 June 2024;

(5) A third further interim defended hearing before Senior Judicial Registrar Conlan on 5 June 2024;

(6) A further mention date before Judicial Registrar Dixon on 18 July 2024;

(7) A mention before Justice Smith on 11 September 2024;

(8) A Review hearing before Justice Smith on 25 September 2024;

(9) A Directions hearing before Judicial Registrar McGee on 25 October 2024;

(10) A fourth further interim defended hearing before Senior Judicial Registrar Conlan on 10 December 2024;

(11) A Compliance and Readiness hearing before Chief Justice Alstergren on 4 February 2025;

(12) A Case Management Hearing before myself on 24 February 2025;

(13) A mention before myself on 21 July 2025; and

(14) This subpoena hearing on 23 July 2025.

1. It is not necessary for the purpose of today's proceedings to describe the controversies which required judicial intervention on the above dates. It is enough to record, for the purpose of providing context, that there has been an extraordinary number of court events which have had real potential to have distracted the parents, and through them the children, from day-to-day life and the responsibilities of parenting. The family, particularly the children, require some finality.
2. In this second tranche of parenting proceedings, there have already been the following changes in parenting orders;

(1) On 8 February 2024 it was ordered by Senior Judicial Registrar Conlan that the children live with the mother and spend time and communicate with the father each Saturday from 9.30am to 7.30pm, each Wednesday from after school until 7.30pm and other times as agreed

(2) On 19 March 2024 it was ordered by Senior Judicial Registrar Conlan that the children spend alternate weekends with the father from the end of school on Friday to the commencement of school on Monday commencing 22 March 2024 and each alternate Thursday evening, with the father at liberty to directly communicate with the children via SMS and email.

(3) On 2 April 2024 Senior Judicial Registrar Conlan varied the Order of 19 March 2024 to extend time to 9.00am Tuesday where Monday was a non-school day.

(4) On 8 August 2024, Senior Judicial Registrar Conlan ordered that the mother be restrained from discussing parenting proposals with the children or from removing the children from the State of Victoria. Senior Judicial Registrar Conlan also ordered that the children attend school every day unless specifically contraindicated by a medical professional and that the father be restricted from attending the children's school. Senior Judicial Registrar Conlan ordered the children be delivered to the playroom at the Melbourne Registry on 19 August 2024 to coincide with her interim Judgment delivery.

(5) On 19 August 2024, Senior Judicial Registrar Conlan ordered by that the father have sole parental responsibility on an interim basis. It was ordered that the children live with the father and time spent with the mother be supervised.

(6) On a Review of Senior Judicial Registrar Conlan's Order of 19 August 2024, on 1 October 2024 Judge Smith confirmed Senior Judicial Registrar Conlan's Order.

1. The dispute which brought the matter before me on 21 July 2025 was a Notice of Objection filed by the mother's psychologist, Ms N, to the release and inspection by or on behalf of the father of the documents produced by Ms N pursuant to a subpoena issued on 17 June 2025 at the behest of Independent Children's Lawyer.
2. On 21 July 2025, the mother was represented by Ms P, solicitor, funded pursuant to s102NA of the Act. The father was represented by Mr Howe of Counsel, also funded pursuant to the s102NA scheme. Ms O, solicitor, appeared for the Independent Children's Lawyer.
3. Without opposition, on 21 July 2025, I ordered that the documents produced by the mother's psychologist be released for inspection by the mother and her legal practitioners and by Independent Children's Lawyer (but not by the father) pending further order of the Court.
4. The issue of whether the documents produced by Ms N are to be released to the father and/or his legal practitioners in these proceedings was adjourned to today so I could take submissions and hear argument from or for Ms N. Having seen the documents, the Independent Children's Lawyer and the legal practitioners for the mother were also in a position to address me on the nature of the documents and whether, in their view, the documents (or some of them) should be released for inspection by the father's legal practitioners and/or the father. Of course, I heard submissions on behalf of the father as well.
5. On 23 July 2025, the mother was represented by Ms Goodrich, the father again by Mr Howe of Counsel and the Independent Children's Lawyer by Ms Toth. Ms N appeared on her own behalf. I sat in Court but the parties attended remotely on the Courts' electronic platform.
6. After the conclusion of the hearing in relation to Ms N's documents, the representative for the mother informed the Court that the mother wanted increased and unsupervised time with the children between now and the final hearing. I did not grant leave for the mother to make an oral application. The mother had attempted such an application without notice before me on a previous occasion, which was not in accordance with the Rules and was likewise not entertained.

1. In preparation for the final hearing (September 2025), on 17 June 2025 the Independent Children's Lawyer caused a subpoena to issue requiring that that Ms N produce "all records, files, reports, letters, emails, memorandums, attendance records and notes, letters of referral, testing results, communications and any other writings in relation to MS [BENSON] born [in] 1972 from 7 May 2024 [to the date of the updated subpoena, being 17 June 2025]".
2. To determine the parameters of the dispute, at the commencement of the hearing on 23 July 2025, there was the following interchange between myself and Ms N[2]

HER HONOUR: You don't have a lawyer. Do you represent yourself today?

[MS N]: Yes.

HER HONOUR: Right. Thank you. The matter is listed for the objection. It's a notice of objection filed, I think on your behalf, [Ms N], and it says:

I object to [Mr Jeffreys] viewing the file due to the sensitive nature of the information, him being the perpetrator of domestic violence.

Do you make an application under section 102BA of the Act?

[MS N]: I do, yes.

HER HONOUR: And on what grounds?

[MS N]: I am a clinical psychologist, and I'm bound by the MARAM framework, which was developed in response to the Royal Commission into Family Violence in 2016. And part of my obligation as a clinical psychologist is to follow the MARAM framework. One of those guidelines expressly talks about clinical notes that are not to be released to a perpetrator of domestic violence, as it could escalate or escalate control. And so that's the reason that I have objected, because I - that's what I'm - the guidelines I'm bound by, that sensitive information such as clinical notes are not disclosed to perpetrators under any circumstances, and they're the

HER HONOUR: Yes. The difficulty is that you've sworn an affidavit at the request of the mother, and the mother relies on the affidavit, and you will be subject to cross-examination. Now, it is commonplace and, in fact, necessary for the cross-examiner to be able to compare what you say in your affidavit with implications and statements in your notes because they may be contradictory.

[MS N]: I'm asking - I'm fine for any other legal representative or other people in the Court to be able to see my notes; However, I'm just going by the MARAM framework that asks that those notes are not released expressly to [Mr Jeffreys].

HER HONOUR: When you say you're going by a framework, the next thing I'm going to ask

[MS N]: Yes.

HER HONOUR: you to do is to show me the sorts of sensitive notes that you say should not be shown to the father given what's in your affidavit.

[MS N]: The notes, no matter whether they appear to be sensitive to somebody or not appear to be sensitive, they're discussions that I've had in a confidential psychology session, and I would say that all of my notes are confidential and all of my notes are something that should be treated with utmost privacy and respect, particularly to my client, who has been a victim survivor of physical domestic violence historically and ongoing coercive control.

HER HONOUR: Anything else you want to say?

[MS N]: No. That's all. Thank you.

1. Ms N's reference to the MARAM framework is a reference to a framework called Multi-Agency Risk Management Framework, used in this state (Victoria), to guide professionals and services in assessing and managing the risk of family violence

1. Division 1B of Part XI, starting at s 102BA of the Family Law Act 1975 (Cth), provides a ground of privilege against the production and/or release and/or inspection of documents of certain sensitive information. Briefly, the sensitive information is called a "protected confidence" which is imparted by a person such as the mother, who is referred to as the "protected confider", to person who is acting in a professional capacity and providing a "professional service", who is referred to as "the confidant". The Court may direct that evidence not be adduced of or about a protected confidence if the Court is satisfied that production, part production, inspection or copying of documents which are or about a protected confidence would cause harm to the protected confider or the child to whom the proceedings relate and that the nature and extent of the harm outweighs the desirability of evidence of the protected confidence being adduced.
2. In deciding whether to make a direction in a parenting case, the Court must regard the best interest of the child as the paramount consideration. Otherwise, the Court must have regard to the matters set out in s102BE(4) of the Act.

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) 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 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.

102BC Direction in relation to adducing evidence

(1) The court may direct that evidence not be adduced in proceedings under this Act, if the Court finds that adducing it would disclose:

(a) a protected confidence; or

(b) the contents of a document recording or relating to a protected confidence.

(a) on its own initiative; or

(b) on application by:

(i) the confidant; or

(ii) a person who is in possession or has control of a document recording or relating to a protected confidence; or

(iii) a litigation guardian; or

(c) if the protected confider is aged 18 or over--on application by the protected confider; or

(d) if the protected confider is a child aged under 18--on application by:

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

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

(iii) a person who has care of the child; or

(iv) a person who proposes to have parental responsibility for the child.

(3) Evidence that is not to be adduced in proceedings because of subsection (1) is not admissible in the proceedings.

S102BD Direction in relation to complying with disclosure requirement

(1) The court may direct that a document or part of a document not be produced, or not be inspected, or not be copied, in proceedings under this Act, despite a disclosure requirement (see subsection (2)), if the Court finds that compliance with the disclosure requirement would disclose:

(a) a protected confidence; or

(b) the contents of a document recording or relating to a protected confidence.

(2) Each of the following is a disclosure requirement :

**(**a) a subpoena to produce a document;

(b) a requirement under this Act or the applicable Rules of Court that a party to proceedings produce a document or part of a document in the proceedings.

(3) The court may give the direction:

(a) on its own initiative; or

(b) on application by:

(i) the confidant; or

(ii) a person who is in possession or has control of a document recording or relating to a protected confidence; or

(iii) a litigation guardian; or

(c) if the protected confider is aged 18 or over--on application by the protected confider; or

(d) if the protected confider is a child aged under 18--on application by:

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

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

(iii) a person who has care of the child; or

(iv) a person who proposes to have parental responsibility for the child.

(4) The person to whom the disclosure requirement applies is not required to comply with it at any time while the Court is deciding whether to give the direction.

(5) The court may order that a document or part of a document be produced to the Court to inspect for the purposes of deciding whether to give the direction.

(6) A document or part of a document to which a direction under this section relates is not admissible in the proceedings.

102BE Grounds and considerations for directions

(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.

1. It is uncontroversial that, in relation to Ms N's notes the mother is a protected confider and that Ms N is a confidant. Indeed, the Explanatory Memorandum to the amending legislation[3] described explicitly the relationship between psychologist and client/patient as follows:
   1. The purpose of new Division 1B is to provide safeguards relating to disclosing and adducing 'protected confidences' evidence in family law proceedings, in circumstances where the likely harm to the 'protected confider' or a child to whom the proceedings relate, would outweigh the desirability of disclosing or adducing the evidence.
   2. These provisions provide a mechanism for the Courts to consider the harm likely to be caused to the protected confider and children to whom the proceedings relate, when evidence of a sensitive nature is produced, inspected, copied and adduced. This evidence will often be generated in the context of therapeutic relationships including doctor and patient, nurse and patient, psychologist and client/patient, counsellor and client. Frequently, in family law proceedings, this information will be produced in response to a subpoena issued to a health service or an individual

1. There was no issue that Ms N's notes are protected confidences within the meaning of s.102BA. Classification of documents as protected confidences means that the following pre-conditions are met:

(1) Ms N is a confidant within the meaning of s102BA(a);

(2) Ms N was acting in a professional capacity to pride a professional service within the meaning of s102BB(1);

(3) Ms N was bound by an obligation not to disclose the communication between herself and the mother, specifically, the MARAM framework.

1. It was not controversial that Ms N's notes are of probative value and have importance in the proceedings within the meaning of s102BE(4). Ms N was the mother's treating psychologist for the final hearing of the first parenting proceedings, and the mother relied on affidavit evidence by Ms N made on 30 November 2018 and another sworn on 7 August 2019. In this second tranche of parenting proceedings, the mother relies on Ms N's affidavit made 18 July 2025. In Ms N's objection to the subpoena, Ms N refers to the father as "the perpetrator of domestic violence" suggesting a concluded view based, presumably, on information provided by the mother.
2. Parenting proceedings are less adversarial proceedings but nonetheless adversarial in nature. Where, as here, the mother relies upon Ms N to provide evidence in support of her case, the other parties must be able to test the evidence upon which the mother relies. As was submitted by the Independent Children's Lawyer, the family report prepared by Child Court Ms Q dated 30 October 2024 includes the following:

[74] ... It is the writer's assessment that [Ms Benson] would benefit from ongoing mental health support, with a professional who has extensive experience working with family separation, conflict and alienation. It is hoped with mental health support and an opportunity for self-reflection, [Ms Benson] may be able to recognise how her choices and behaviours have impacted both her and the children. The writer would be concerned if [Ms Benson] refused to engage in this therapeutic support and what impact this would have on the children without this scaffolding. Until a demonstrated shift has occurred in [Ms Benson's] rigid narrative, a supervised setting must remain to ensure stability and security for [Y] and [X]

[...]

RECOMMENDATIONS

[...]

[78] [Ms Benson] engages in mental health support through a mental health professional with expertise in family separation, conflict and alienation.

1. Ms Q's most recent report, dated 11 June 2025, includes the following:

[69] In the interviews with [Ms Benson], the writer observed that [Ms Benson] remained steadfast in her belief that [Mr Jeffreys] has perpetrated family violence and the children's safety remains at risk whilst in his care. [Ms Benson] did not demonstrate any shift in her self-reflections. When asked about her engagement in therapeutic supports which specialise in parental conflict, resist/refuse dynamics and family separation; a recommendation of the previous family report, it appeared [Ms Benson] had not meaningfully engaged in these supports. Whilst positive [Ms Benson] has completed a parenting after separation course, it did not appear to alter her capacity to consider alternatives, and rather [Ms Benson] remained rigid and unwavering in her views and opinions. [Mr Jeffreys'] narrative regarding [Ms Benson's] continued use of undermining and insidious comments to the children also remains a concern. If factual, this further demonstrates a lack of change in [Ms Benson's] perspective and understanding of the children's emotional wellbeing.

[70] [Ms Benson] has demonstrated an entrenched pattern of behaviours throughout the current Court proceedings and historic proceedings. As outlined previously, earlier family reports and assessments by [Dr J], [Ms K] and [Ms C] highlighted concerns regarding [Ms Benson's] narrative and the potential impact this has had on the children and the relationship with [Mr Jeffreys]. If the Court finds [Mr Jeffreys] has not perpetrated family violence or child abuse, it is of deep concern [Ms Benson] maintains this false narrative and the writer remains concerned about the children's emotional wellbeing and safety in her care.

1. I accept that it is of concern to the Independent Children's Lawyer that there is no evidence of the mother accessing treatment apart from Ms N. I am satisfied that there is probative value in the notes of Ms N, for what those notes may, or may not, contain.
2. I note that there are allegations that the mother poses a risk to the children. In her unpublished reasons as to interim care and parenting arrangements, Senior Judicial Registrar Conlan recorded the following:

[93] On the untested evidence available to me and particularly the independent expert evidence, I am satisfied that the Mother currently presents an unacceptable risk to the children's safety and wellbeing. I am satisfied that an immediate intervention is required to "interrupt this chronic cycle of conflict with a view to affording the girls access to a stable, nurturing environment that will promote their development and wellbeing". I am also satisfied that the children will be at risk of resisting the support of their Father permanently if they remain for any longer in their Mother's sole care.

[94] Until such a time as the Mother can demonstrate her willingness and capacity to engage with the expert recommendations in these proceedings in a manner that priorities the best interests of the children, above her wish to be rid of the Father, I am not satisfied the Mother is a position to safely nurture the children.

Best interests of child is paramount consideration

1. Section 102BE(3) specifies that in parenting proceedings the best interests of the child form the paramount consideration. It is contended by both parents that co-parenting is not an available option for this family. The mother's mental health and capacity for insight with respect to parenting will be key issues for determination at final hearing.
2. There are no other proposed witnesses who could provide similar evidence from a therapeutic perspective.

1. There was no evidence provided by Ms N or the mother on the likelihood of harm or the nature and extent of harm which would or might be caused to the mother or the children by the documents produced by Ms N being released to and inspected by or on behalf of the father. The Court's power to make a direction under s102BC is conditioned upon the Court being satisfied that releasing Ms N's documents for inspection to the father would disclose a protected confidence. However, when I asked Ms N to direct me to a document produced by her which would or might be directly or indirectly harmful to the mother or the child, she responded that she is bound by the MARAM framework which dictates that clinical notes are not to be released to a perpetrator of domestic violence. Ms N submitted that the entirety of her notes are sensitive and confidential in those circumstances.
2. The wording of the legislation goes to the "likely effect" and "likelihood of harm" following disclosure to the protected confider (the mother) and to any children in the proceedings. I note this is a higher standard than mere possibility of harm. The children currently live with the father but there is no suggestion that the release of the notes to the father's solicitor poses any risk of harm to the children. The allegations that the father has perpetrated family violence on the mother and/or children are at this stage untested.
3. In her unpublished reasons as to interim time and parenting arrangements dated 19 August 2024, Senior Judicial Registrar Conlan notes as follows:

[86] [...]The s 69ZW response from Department of Families Fairness and Housing dated 8 March 2024, notes the Mother's allegations regarding the Father are historical and unparticularised. While also noting the impact on the children of being exposed to the chronic conflict of their parents, the Department concludes there is no evidence the children are at immediate or significant risk of harm in the care of either parent. There is no reference to the children's inadequate school attendance or deteriorating mental health in the s 69ZW Response.

1. In the absence of evidence I am not satisfied there is any risk of harm to the children on the release of the notes to the father's legal practitioner and, under the supervision of that practitioner, to the father.
2. As to the effect of production upon the mother, the mother's legal practitioner did not adduce evidence or make submissions as to any consequences for the mother. Interestingly, neither did Ms N.

1. In terms of s 102BE(4)(d), I must consider whether the substance of the documents produced by Ms N have already been disclosed by the mother or any other person. I am informed by the Independent Children's Lawyer that, in May 2024, Ms N was served with a subpoena issued by the Independent Children's Lawyer and had produced her files which were released for inspection including by and on behalf of the father. The mother and father were self representing litigants at the time. The mother, who is now represented by Bramham Lawyers, does not take issue with the submission by the Independent Children's Lawyer that the father has already seen most of the documents in respect of which Ms N has lodged an objection.

1. In terms of s 102BE(4)(e), I accept that there is public interest in preserving the confidentiality of protected confidences. However, to a large extent, confidentiality has not been preserved. Confidentiality has been waived in relation to the documents produced by Ms N in response to the subpoena issued at the behest of the Independent Children's Lawyer in May 2024. I also accept that there is 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 terms of s 102BE((4)(f) and (g), the mother is represented today. She does not oppose a direction which releases all documents produced by Ms N being inspected by the father providing he is accompanied by his lawyer in these proceedings. The other parties do not oppose a direction in those terms.

1. The material will be released to the practitioners for the father on the condition the father not personally view the material without a legal practitioner present, and he is not provided with any copies of the documents produced on subpoena by Ms N. I come to this conclusion having regard to the interest of the children as the paramount consideration.
2. This family has been through an extraordinary amount of litigation. It must cease with the upcoming hearing. For this reason, it is in the best interests of the children that the case of each parent be thoroughly scrutinised. On the facts of this case, that scrutiny includes an examination of the notes of the mother's psychologist. The concept of harm has simply not been articulated before me today in such a way that it outweighs the importance which may ultimately attach to testing each parent's case by reference to the documents in question.

I certify that the preceding forty-one (41) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Bennett.

[1] Benson & Jeffreys [2024] FedCFamC2F 1158 (unpublished).

[2] Transcript of proceedings, 23 July 2025, p.2 line 10 to p.3 line 18.

[3] Explanatory Memorandum, Family Law Amendment Bill 2024.