Helmo & August (No 2) [2025] FedCFamC1F 915 (16 December 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 the pseudonym Helmo & August has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).

(a) An application for costs made by Dr Morgan, the recipient of a subpoena to produce documents issued on 29 August 2025 at the request of Ms August ("the mother") during property and parenting proceedings between she and Mr Helmo ("the father"); and

(b) As to costs irregularly purportedly sought by the mother absent application that Dr Morgan pay her costs of an objection to that subpoena.

1. Dr Morgan is the father's treating psychiatrist. The schedule to the subpoena sought the production of:

...

1. Copies of all medical records, files, notes, writings, correspondence, memos, assessments (including psychological and psychiatric assessments, risk assessments, mental state examinations, and clinical formulations), reports (including medico-legal reports), treatment plans, referrals, discharge summaries, prescriptions and medication records, and any documents or recordings relating to consultations, communications, attendances, symptoms, diagnosis, prognosis, treatment or care, including any letters or reports provided to third parties such as other medical professionals, legal representatives, or government agencies, and any other document referring to or recording the mental health or psychiatric condition or risk profile in relation to:

2.1. Mr [Helmo], born [in] [date redacted] 1972

1. On 29 August 2025, Dr Morgan filed a Notice of Objection to the subpoena annexing a letter dated 26 August 2025 recording:

I give notice to object to the production of medical records for my client [Mr Helmo] for the following reasons:

1. Mr [Helmo] has been a client in my care since 2008 receiving ongoing weekly psychological therapy. The information he has disclosed to me is of a highly sensitive and deeply personal nature. In disclosing and working through past childhood trauma in addition to the current acrimonious relationship breakdown, he has required a therapeutic relationship that ensures confidentiality.

2. I believe that disclosure of this sensitive material may cause considerable harm to Mr [Helmo] and that this outweighs the desirability of accessing his file notes which may be potentially weaponised against him. I am deeply concerned that this may cause emotional harm, psychological oppression and significant mental stress.

3. I believe that this disclosure may compromise Mr [Helmo's] ongoing recovery.

4. I am concerned that the disclosure of sensitive information that has been assumed to be confidential may significantly damage our ongoing therapeutic relationship which is founded on trust and confidentiality. I believe this must be a protected confidence.

• I note changes to the Family Law Act from 10 June 2025 (Section 102BE) allowing for the protected confidence of sensitive information. I note that: Protected confidences is defined as a communication:
  • in the course of a relationship with a person acting in a professional capacity to provide a professional service to another person and

o who is under an obligation not to disclose communications made

1. I would respectfully ask the court to consider this therapeutic relationship as qualifying for such protected confidence.

1. On 2 September 2025, the father filed a Notice of Objection to the subpoena detailing his objection as follows:
   1. Relevance: The material requested is not relevant to parenting and property matters. I have been a client of Dr. [Morgan] since May 2008, and I visit his practice weekly. The court ordered Family Report prepared by [Ms M] notes my view that the consultations with Dr. [Morgan] constitute an important part of my self-care routine and are not evidence of mental illness (point 40). Further, the Family Report did not identify any "risks to the children that are related to poor parental mental health" on my part (point 42) [ see Family Report]. Accordingly, I submit the respondent is undergoing a fishing expedition with no grounds supporting her request for production.

1. As to objection taken in relation to a protected confidence, it recorded:
   1. Harm: I fear that the respondent has malicious intent and will use the material she requests for production to cause me emotional harm. The respondent frequently abuses me via text message by explicitly referring to my therapy and therapist and has also made ill-informed speculations about my psychological well-being. The respondent also has a history of sending me abusive messages about my mother, father, and sister.
   2. I fear that the content of my medical file will be used by the respondent to cause me further targeted abuse and harm. The respondent often sends me hostile, abusive messages containing quotes and paraphrases extracted from material filed or produced in the legal proceedings, including my affidavit and the Family Report. The respondent has been asked repeatedly, via her legal representation, to refrain from sending such unwanted communications to me. However, these requests have been ignored, and the abuse has continued. I confirm that I do not respond in kind to such communications.
   3. Sensitive information: My therapy is based on trust and a privileged relationship that I have been reliant on to discuss highly confidential personal matters, including to a large degree matters unrelated to these proceedings. Given that I am self-represented, I would have to personally read the files. My reading of these files may disrupt and damage the therapeutic relationship, thus causing me harm as my therapeutic relationship with Mr [Morgan] is ongoing practice.
   4. My therapist has advised me that he has objected to the production and inspection of the documents.

1. The protected confidence objections of Dr Morgan and the father were listed for hearing on 3 November 2025, being the first day of the trial before a judge in Division 2 of the Federal Circuit and Family Court of Australia.
2. On 3 November 2025, upon application by the parties and Dr Morgan, consent orders were made as follows:

First Access to material produced by Dr [Morgan]

1. The legal representative for the Applicant Father have first access to the material produced under the subpoena to Dr [Morgan] filed on 20 August 2025 for one (1) day.

2. Unless otherwise ordered, then as and from 9.00 am on Tuesday 4 November 2025, the legal representative for the Respondent Mother have leave to photocopy or receive electronically from the Court all material produced under the subpoena to Dr [Morgan] filed on 20 August 2025.

3. The material produced under subpoena is released on the following conditions:

3.1 All copies are to remain in the possession of the legal representatives and are to be destroyed by them and permanently deleted from any electronic storage system at the end of the proceedings; and

3.2 The legal representatives may discuss with their clients the documents produced but are restrained from providing a copy to them or any other person without an Order of the Court.

1. The Notice of Objection to Subpoena filed by Dr [Morgan] on 29 August 2025 is otherwise dismissed.
2. The Notice of Objection to Subpoena filed by the Applicant Father on 2 September 2025 is otherwise dismissed.

1. On 3 November 2025, the following further orders were made:

Costs of the third party objector

1. The third party objector is to file and serve written submissions in respect to costs of no more than two (2) pages within 14 days of the date of these Orders.
2. The Respondent Mother shall file and serve written submissions in reply of no more than two (2) pages within a further 14 days.
3. Upon the last filing of material in conformity with Order 7, the decision in relation to costs stands reserved.

1. On 3 November 2025 the proceeding was transferred to Division 1. The parenting and property disputes were bifurcated.
2. The trial of the property cause was heard on 3 and 4 November 2025 before a judge in Division 1. Reasons for judgment were published and orders were made in accordance with those reasons on 17 November 2025, broadly providing for the mother to pay to the father $393,342; for she to retain a real property at Suburb B, or to facilitate its sale in the event she cannot pay the fixed sum to the father; and for each party to retain their respective items of personalty.
3. The parenting proceedings were listed for hearing on 25 and 26 November 2025. By consent, final orders were made on 26 November 2025 compromising the parenting dispute.
4. Dr Morgan as the third-party objector pursuant to orders made on 3 November 2025 filed his written submissions and affidavit in support thereof by Mr Samuel Fitzgerald on 18 November 2025 seeking orders as contained in paragraph 5 that:
   1. The Respondent Ms [August] pay the costs of Dr [Morgan] on an indemnity basis in the sum of $7,330.
   2. In the alternative to order (a), the Respondent Ms [August] pay the costs of Dr [Morgan] in the sum of $6,000.
   3. In the alternative to order(a) and (b), the Respondent Ms [August] pay the costs of Dr [Morgan] in the sum of $3,640.09 being costs in accordance with Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

1. The mother as the respondent to the costs application pursuant to the orders made on 3 November 2025, filed written submissions on 23 November 2025. Buried on page 10 of 15 of her written submissions are the following paragraphs:

Costs Sought by The Respondent Mother:

1. The Respondent Mother did not initially seek costs in relation to the subpoena objection. As evidenced in the proposed consent orders circulated on 22 October 2025 and 24 October 2025, the Respondent Mother expressly proposed that no order as to costs be made, notwithstanding that the filing of the Notice of Objection had already generated unnecessary legal work.
2. The Respondent Mother's consistent objective was to resolve the objection efficiently and without the incurring of avoidable costs by any party.
3. However, following the filing of the third-party objector's submissions dated 14 November 2025, in which the third-party objector sought that the Respondent Mother bear his costs, the necessity arose for the Respondent Mother to seek her own costs of and incidental to responding to the third-party objector's application.

1. The respondent mother did not seek leave to make an application in terms of paragraphs 78 to 80 inclusive of her written submissions. She did not file any affidavit evidence in support of that purported application. She did not seek leave to relist the proceeding. She has not afforded the third-party objector, Dr Morgan fairness to respond to the purported application. Insofar as she implicitly seeks leave to make such application by way of her written submissions such leave is refused for these reasons.
2. The mother otherwise seeks that Dr Morgan's application for costs be dismissed. She seeks an order for costs of and incidental to the objection and the costs application.

1. The relevant principles as to costs are well settled. Whilst the default position is that parties to family law proceedings bear their own costs, where the circumstances justify it, the court may make such orders as it considers just (s 114UB(2) of the Family Law Act 1975 (Cth) ("the Act")).
2. In considering a costs order, the court must take into account the matters set out in s 114UB(3) and give weight as it considers appropriate to any relevant factor. It is well settled that no single factor in s 114UB(3) has priority, nor must more than one factor be satisfied. Rather, any one factor may be sufficient. The court is more likely to make costs orders where third parties to the marriage are involved (Burt & C Pty Ltd (In Liquidation) [2024] FedCFamC1A 203 at [7]; Wei & Xia (No 2) [2024] FedCFamC1A 138 at [35]; Conrad & Conrad (2020) 61 Fam LR 301 at [43]; E Pty Ltd & Zunino (No 2) [2020] FamCAFC 272 at [17]).
3. It is not controversial that Dr Morgan has standing to apply for costs of the subpoena directed to him and the objection taken to it. If Dr Morgan establishes there are circumstances justifying the costs order, the next consideration is on what basis should costs be paid.
4. The Full Court has made it clear that it is unnecessary to spell out detailed reasons for the decisions in costs matters. I shall refer to such matters as are relevant and engaged here.
5. The parties to the costs dispute filed material in excess of that as directed. Insofar as it is necessary, all parties have leave to rely on their material as filed.

1. The basis of the mother's submissions as to the objector being adequately resourced attract little weight. The mother omitted to identity the benefits she received from the property and resources she received or retained by way of the property judgment.
2. Dr Morgan identifies that he is a stranger to the proceeding and his engagement in them was brought about by way of the mother's subpoena. He contends that he was obliged by way of his long-term therapeutic relationship in treating the father to protect the confidences provided in that environment.
3. He gives evidence of attempts to regulate a process of the release of the documents sought on subpoena in a manner not inconsistent with s 102BD of the Act. The mother initially consented to, and then withdrew from, her agreement to that process. He cites that thereafter the mother "maintained her opposition" to the maintenance of a protected confidence pursuant to Div 1B of Pt XI of the Act until "the business day before the hearing". He says, and I accept, that it was therefore necessary for him to engage counsel to conduct the Pt XI, Div 1B hearing. He submits that significant weight ought to be afforded to the mother consenting to his proposed minute of order on the first day of the trial, citing that the mother gave an inadequate explanation as to the reasons underscoring her delay. Each of these submissions have merit.
4. The mother submits that the schedule to the subpoena sought "broad categories of clinical records". She omitted in the schedule to specify a date range of documents sought, or to limit the categories of documents sought to those being apparently relevant to the issues in dispute. On one view, the construction of the schedule is indicative of an abuse of process.
5. Her submission that Dr Morgan did not avail himself of the specific procedures identified in paragraphs 24 to 26 of the subpoena to achieve the protection of confidences is somewhat hollow when cast against the proposed process of access to documents crafted to protect confidences. I do not accept her submission that the "blanket objection" of Dr Morgan weighs against justifying circumstances as to costs. Dr Morgan should not be criticised in his capacity as a treating physician by implementing his professional obligations to protect a patient's confidence recently codified in s 102BA of the Act. It does the mother little credit to try and deflect responsibility for a response to a broad subpoena issued at her request.
6. The submission of the mother that the consent order entered on 3 November 2025 resolving the objections as being a "material departure from the position advanced by both the father and Dr Morgan in their Notices of Objection" fails to engage with the proposals and counterproposals to determine the objection in the weeks prior to trial. The construction of the mother's proposals prior to 3 November 2025 to regulate access to the material produced are not accepted, as she asserts, to be a "sensible resolution" when compared to that proposed by Dr Morgan, which were initially accepted by the mother and then deserted by her. The mother's explanation for her conduct does not engage with she putting Dr Morgan to additional unnecessary costs and expenses. The mother had the opportunity to avoid further disputes and elected not to do so. This circumstance compounds weight to the submissions made by Dr Morgan.
7. A broad consideration of these circumstances justifies an order that the mother pay Dr Morgan's costs of his Notice of Objection filed on 29 August 2025.

1. It is well-settled that the court should not lightly depart from the ordinary rule that costs are payable on a party/party basis or at scale and that an order for indemnity costs requires the establishment of exceptional circumstances (Mansfield and Ors & Mansfield and Anor [2019] FamCAFC 186; (2019) FLC 93-920).
2. Dr Morgan adduced evidence by his solicitor's affidavit that the costs incurred on an indemnity basis are $7,330, and implicitly if payable on a party/party basis at value of $6,000, and on a scale basis at value of $3,640.09.
3. Dr Morgan contends that the mother's conduct falls within an exceptional circumstance to order indemnity costs because she ought to have known that she had no chance of success in opposing the objection. I do not accept that submission in its entirely. I accept that Dr Morgan endeavoured to engage the provisions of ss 102BC or 102BD of the Act and the mechanisms available to navigate a course of protecting a confidence while ensuring access to forensic material. The ultimate consent orders made determining the objection reflected that course. An order for costs is to compensate a party against expense incurred in litigation and is not punitive in nature. Costs will be payable on a party/party basis.

1. The mother opposed the fixing of costs. The proceeding has concluded. Fixing costs in a specified amount avoids the expense, delay, and aggravation arising out of an assessment of costs (Graham & Squibb [2019] FamCAFC 33; (2019) FLC 93-892 at [92]).
2. The touchstone as to the fixing of costs is to ensure that the process is logical, fair, and reasonable. Dr Morgan has provided schedules as to his costs of and incidental to the preparation and appearance at the objection hearing on 3 November 2025 by way of an invoice from his solicitor and an itemised costs schedule from his counsel.
3. Dr Morgan's costs claimed on a party/party basis are considered reasonable by reference to the fee agreements and invoices adduced into evidence and to scale. The mother did not submit that the quantum of the party/party costs claimed were unreasonable. It is just to fix the costs payable to Dr Morgan on a party/party basis as sought. No submissions were made as to time to pay costs ordered. The standard period of 28 days to pay will apply.

1. Dr Morgan did not seek his costs of the costs application. There are no justifying circumstances for the mother to obtain a costs order for the costs determination. Her application for costs of the costs application is refused.

1. For all of the above reasons, I make the orders as set out herein.

I certify that the preceding thirty-five (35) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Campton.