Woods & Holmes (No 3)
[2025] FedCFamC1F 463
•16 July 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Woods & Holmes (No 3) [2025] FedCFamC1F 463
File number(s): CAC 217 of 2024 Judgment of: GILL J Date of judgment: 16 July 2025 Catchwords: FAMILY LAW – PRACTICE AND PROCEDURE – Subpoenas – where subpoena objected to on the basis of protected confidence – whether party is a professional service – whether the communications are protected confidences – whether likely harm outweighs desirability of production – application objecting to subpoena dismissed Legislation: Family Law Act 1975 (Cth) ss 102BA, 102BB, 102BD, 102BE Division: Division 1 First Instance Number of paragraphs: 58 Date of hearing: 4 July 2025 Place: Canberra Solicitor for the Applicant: Mr Robinson, Robinson McGuinness Solicitor for the Respondent: Litigant in person Solicitor for the Independent Children's Lawyer: Ms Mussato, Legal Aid ACT ORDERS
CAC 217 of 2024 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MS WOODS
Applicant
AND: MR HOLMES
Respondent
ORDER MADE BY:
GILL J
DATE OF ORDER:
16 JULY 2025
THE COURT ORDERS THAT:
1.The application by the mother that a direction be given pursuant to s 102BD that material not be produced by Ms B of C Organisation pursuant to a subpoena filed 30 May 2025 is refused.
2.The application by C Organisation that a direction be given pursuant to s 102BD that material not be produced by Ms B of C Organisation pursuant to a subpoena filed 30 May 2025 is refused.
3.Save as to the issue of privilege the objections to the subpoena filed 30 May 2025 are dismissed.
4.On production of material by C Organisation the mother shall have first right of inspection, for a period of fourteen days following production, to determine whether a claim as to privilege arises and will be exercised.
5.Subject to a claim as to privilege, or to a further order of the court, the father may only inspect material produced by C Organisation through his legal representative, and is not entitled to view, retain or to receive a copy of such material.
6.The objections by the mother to the subpoenas of 30 May 2025 directed to D Medical Centre and to Ms Woods are withdrawn and dismissed.
7.The proceedings are listed for directions before the Judicial Registrar on 22 October 2025 at 10:00 am in person at the Canberra Registry.
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).
REASONS FOR JUDGMENT
GILL J
This judgment concerns protected confidence claims made by the mother, and by C Organisation, in response to a subpoena issued at the request of the father. Although a further issue arose as to a claim of privilege in respect of an aspect of that subpoena, that was a matter that could be dealt with separately.
The substantive proceedings concern the parenting arrangement for the parties’ child, X, born 2018, aged 7. Interim orders made on 4 July 2025 currently provide for X to live with the mother, for the mother to exercise sole parental responsibility, and for X to spend professionally supervised time with the father. Those orders were made in the context of the father, as X’s primary carer, unilaterally removing and retaining X in Portugal, and of a risk presented by the father of abduction of X or otherwise undermining X’s relationship with the mother.
The background circumstances are more fully set out in the judgment dealing with those interim orders and need not be repeated here.
Looming large in those proceedings are issues of family violence, made by each of the parties, and issues related to the mother’s mental health and its potential impact on X.
In answer to the issues raised by the father in relation to her mental health the mother described in her evidence engagement with a psychologist, with her general practitioner and with C Organisation, who provided counselling services to the mother in the context of X’s retention overseas.
The subpoenas
On 30 May 2025, the husband filed a set of three subpoenas, directed to:
(a)Ms E, being a psychologist previously engaged by the mother to provide therapeutic counselling services;
(b)D Medical Centre, being the place of practice of the mother’s treating practitioner, Dr F; and
(c)Ms B, C Organisation, being currently engaged by the mother to provide counselling services.
The mother’s objections
On 12 June 2025, the mother objected to all three subpoenas, on the basis that the documents produced related to protected confidences.
In relation to each of them, the mother’s objection asserted that the documents to be produced related to protected confidences as defined by s 102BA of the Family Law Act 1975 (Cth), and as each party had provided a professional service to the mother, they were ‘under a professional obligation not to disclose the confidential communications’ made to them, by the mother.
The mother subsequently abandoned these claims but then obtained leave to pursue again that claim in respect of C Organisation.
The C Organisation objection
Additionally, on the same date as the mother’s objections, C Organisation made an objection. While they objected on the grounds of protected confidence, they also objected on other grounds. The reasons given are set out here:
The scope of the request for documents is oppressive and the broad and vague nature of the request is unfairly burdensome or prejudicial. The scope of the request for documents constitutes a fishing expedition. The scope of the request includes documents that are protected by legal professional privilege.
The scope of the request for documents constitutes disclosure of a protected confidence. The documents disclosed are prepared in a professional capacity to provide a professional service which includes confidential Social Work counselling and case management records that relate to the protected confider’s health and the production of these documents may cause harm to the protected confider.
By the time of the hearing of the matter, the only remaining issues were the protected confidence argument and the privilege argument that will be separated from this determination.
PROTECTED CONFIDENCES
Division 1B of Part XI, starting at s 102BA of the Family Law Act 1975 (Cth), provides a scheme for declining to compel production, or declining to admit into evidence, certain sensitive information. The provisions were recently enacted and commenced on 10 June 2025.
The scheme is directed to a “protected confidence,” a term reliant upon definitions of “protected confidence” at s 102BA and “professional service” at s 102BB, which are in the following terms:
102BA Definition of protected confidence
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).
102BB Definition of professional service
(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.
As it is the status of a communication being a protected confidence that attracts the operation of the scheme, and as that is in turn reliant upon a relationship with a professional service, it is perhaps firstly helpful to consider the character of C Organisation and whether it falls within the definition at s 102BB.
C Organisation was argued to be a relevant professional service on two bases. The first was as specialist service related to family violence pursuant to s 102BB(1)(b)(ii). The second was as a health service pursuant to s 102BB(1)(a).
Is C Organisation a specialist service related to family violence?
In support of the proposition that C Organisation meets this criterion, C Organisation tendered a grant agreement and variation to the grant agreement in order to establish the nature of the services offered. In broad terms, the objectives of the program are to provide legal assistance to left-behind parents who hold rights of custody or access, where children have been removed to a Hague Convention country, or to Egypt or Lebanon; and to provide social work support including counselling to families affected by international child abduction.
This involves (amongst other activities) the provision of legal assistance (and hence the related legal privilege claim), and the provision of information, counselling, advice, practical and emotional support, and referrals for counselling, domestic violence services, men’s services and community legal centres.
The variation to the grant agreement expanded the description of the support to include:
Family violence focused social support to both left-behind parents and parents/care givers who are alleged to have wrongfully removed or retained their children or who might do so, including, as required:
*specialised information, advice, support and counselling for parents and children who may have experience or be at risk of, domestic violence
*assisting parents to develop safety plans, to apply during the Hague Convention proceedings and in anticipation of either a return order or a non-return order
*providing referrals to support services including domestic violence services and mental health services, including psychological assessments for parents.
The Explanatory Memorandum does not directly assist with the scope of the term “specialist service.” It provides some assistance in that it identifies the purpose of the legislation as follows:
Protected Confidences
25. Part 5 of Schedule 3 of this Bill will amend the Family Law Act to expressly safeguard against the disclosure and adducing of evidence related to ‘protected confidences’ in family law proceedings. These amendments recognise that perpetrators of family violence may seek to use the family law system as a vehicle to abuse a former partner, including by seeking the disclosure of an individual’s private and sensitive records. This can have significant detrimental consequences for a respondent’s wellbeing and for their willingness to seek future support and treatment.
26. This measure will support victim-survivors of family violence (who are predominantly women) by providing a mechanism to prevent sensitive records being viewed by, and/or weaponised by, a former partner in the course of family law proceedings. This will assist women’s full participation in family law proceedings on the same basis as men (Article 3).
The meaning of “professional service” should be considered in the light of the purpose of the legislation, and a construction adopted that promotes that purpose. While one construction of specialist service in relation to family violence could be a service that is specialised in the sense that such is the only matter dealt with by the service, such a construction does not accord with the object of the legislation. A better understanding that accords with the stated objective is that the term incorporates a service that provides specialist services in relation to family violence.
As identified by the amended service agreement, that is a component of the work undertaken by C Organisation, whether directed to the left-behind parent or the alleged wrongfully removing/retaining parent.
Under those circumstances, C Organisation may be regarded as a relevant professional service.
Is C Organisation a health service?
Section 102BB(3) approaches the issue on an activity basis, which leaves open the prospect that some communications that are with a particular service may be with a health service, while others with the same service may not be, depending upon the particular activity being performed. In order to consider whether the communications with C Organisation are with a health service as a professional service, or are not, it is necessary to understand the activities being engaged in with that service.
As identified further below, the mother’s engagement with Ms B from C Organisation, who is a social worker, has been in her capacity as a counsellor. Under those circumstances that aspect of the engagement with C Organisation also falls within the scope of professional service as a health service, being directed toward the psychological health of the mother, in terms of the improvement of her psychological health through counselling support.
Are the communications with C Organisation protected confidences?
Having identified above that the engagement with C Organisation meets the requirement of being with a professional service, the next issue to be determined as to the applicability of the provisions is whether the communication with the professional service is a protected confidence.
To meet this requirement the communication must be made in a professional capacity, which it may be thought would rarely be contentious, and was not an issue raised in this case.
Of greater significance is the requirement that there be an obligation not to disclose the communication. 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.
Under those circumstances it may be concluded that the mother’s engagements with C Organisation for the purpose of counselling constitute protected confidences.
This conclusion is the gateway that then enables, subject to s 102BE, the court to exercise the power contained at s 102BD to direct that a document not be produced, inspected or copied.
Consideration for the exercise of the power
The exercise of the power to give such a direction is conditioned by s 102BE which is in the following terms:
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.
The mother’s affidavit material
The mother’s affidavit material identifies the mother having engaged with a psychologist, a general practitioner and with Ms B from C Organisation in circumstances of psychological and practical struggle.
It may be noted that the father raised the mother’s mental health as an issue bearing upon her capacity to care for X. Whilst in the interim proceedings he accepted that the mother is able to provide care for X, that should not be thought to be an abandonment of the mother’s mental health as an issue in the substantive proceedings.
In the mother’s affidavit filed 20 May 2025, she describes the events that have led to her seeing each of her treating practitioners. She also describes the various struggles she has had which each psychologist has assisted her with.
In the mother’s affidavit filed 11 June 2025, she repeats much of the same as in her previous affidavit. However, she also mentions that she sought each of the subpoenaed parties file a report with the court. At the time of the hearing, only Ms B had filed an abridged report.
In the mother’s affidavit filed 20 May 2025, she describes that she has been seeing her GP, Dr F, since late 2017 when she was pregnant with X. After she had X, she received a referral to Ms E, a psychologist. When X was less than 1 years old, Ms E attended the mother’s home early in the morning, as she was ‘struggling with being a new parent, and… felt [she] needed more support around this time’. The mother also describes feeling burnt out and that she was unable to get things done to the standard she wanted. Ms E helped her break down her overthinking, as well as discussing with her how to not dwell on things and instead focus on managing her own needs as well as X’s needs. The wife continued to see Ms E once every 6-8 weeks, with appointments stopping in or about 2022. In August 2020, her GP prescribed her with Sertraline.
The mother undertook a mental health care plan in February 2024 and has been seeing a counsellor, Ms B, through C Organisation. The wife described how Ms B has assisted her with what she is going through since X was taken to Portugal, and helped assist her with types of things that can be said to X about the situation.
In the mother’s affidavit filed 11 June 2025 she describes how she is continuing to see Ms B.
She also explains how she requested a report in relation to mental health from Dr F (her GP), Ms E (her former psychologist), and Ms B (a counsellor for C Organisation). However, Ms E declined to provide a report and Dr F was on leave. Ms B prepared an abridged report, which can be found in exhibit M1.
CONSIDERATION
The central evaluation is whether the likely harm from causing production outweighs the desirability of production. The section provides for a number of considerations, dealt with below.
Direct evidence as to likely harm was not adduced. 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. In this case, the production would come about in circumstances where the parties have identified psychological vulnerability on the part of the mother as a real issue in the case, albeit, at present, not sufficient to prevent the mother having significant care of the child.
Those matters point to the potential for harm. In this case they do not go so far as to demonstrate a likely harm beyond likely mental distress. At s 102BE(2)(c) mental distress is specifically identified as a type of harm to be considered, and so the fact that harm is limited in such a way does not negate the necessity of considering it in the evaluation of harm and desirability of production.
At present there is little scope to evaluate the probative value of the material to be produced, as its content is not known.
It can, however, be considered that there is potential for the produced material to go to an issue of importance in the proceedings, being the mother’s capacity to parent the child, and to issues of risk that have been raised. What the mother has said to the counsellor may be expected to go to both the difficulties experienced by the mother and her capacity to take support to ameliorate such, in the context of her psychological vulnerabilities. The importance of such issues is emphasised by the mother’s adducing of a report to address such issues from the very person regarding whom she now resists production.
The issue is significant in the proceedings. The production of material from the counsellor may be anticipated to throw light on the issue. In this way the documents to be produced can be considered to be important in the proceedings, even where their probative value is unable to be assessed.
While there may be other evidence going to the mother’s potential psychological vulnerabilities, the substance of what has passed between the mother and counsellor can be considered to be a potentially important source for testing the opinions and conclusions of other professionals. Its potential importance is not necessarily reduced by the potential for other evidence bearing on the issue.
As to the effect of production upon the mother, it may be considered that the production of the material will be the source of mental distress.
That distress may be ameliorated by limiting the access to the material. In this case the father has indicated that he will forego access until represented and accordingly will not see the material at this stage. Further, directions will be given to stipulate that he will not be able to hold or retain a copy of the material produced. While this cannot be thought to remove mental distress, it gives some assurance as to the limitation of the use of the material.
Given the production of a report, it may be considered that some aspect of the material has been disclosed, albeit in a highly limited manner.
As to public interest, two matters were raised. C Organisation who opposed the production noted that it would act as a disincentive to persons to engage with support such as offered by C Organisation. It may be accepted that the potential for production will mean that C Organisation will not be able to guarantee confidentiality against court processes when engaging with persons that they are tasked with assisting. However, whatever the outcome in this case, such a result remains on the cards in any case involving such communications, to be resolved by the evaluative exercise set out in s 102BE as it applies to each individual case.
The mother also pointed to a perverseness in the person who removed and retained the child now be able to gain access to material generated to support the mother in circumstances brought about by his misconduct. The argument implicitly draws on the notion that the father will be able to benefit from his own wrongdoing. This is a matter that may bear upon the assessment of the desirability of producing the material.
It may be noted that the protected confider opposes the release of the material and is legally represented.
Section 102BE(3) specifies that in parenting proceedings the best interests of the child form the paramount consideration. This is a factor that may point in different directions. In a particular case, the production of material may be harmful for the child, for example where it harms a person who cares for the child to a degree that undermines the care of the child. That is not established in this case.
At the same time, it must be recognised that the best interests of a child require the court and parties to have what is necessary to evaluate those best interests. The capacity of the court to assess safety, the views of a child, the developmental, psychological, emotional and cultural needs of a child, the capacity of a person to provide for those needs, the benefits of a child in having a relationship with someone significant to them, where it is safe to do so, or any other matter bearing upon best interests, is itself fundamental to the best interests of a child. The function that the court is tasked with, in the cases coming before it, to determine best interests may provide a compelling reason to consider that the desirability of producing the material is not outweighed by the likely harm.
It is, however, a matter to be judged in the circumstances of each case, and each protected confidence. There will, undoubtedly, be many occasions when the nature of the material is clearly outweighed by likely harm, and where the court refusing to compel production does not undermine the determinative function of the court. For example, where a specialist family violence service has arranged accommodation for a parent and children in order to protect them from family violence, it is difficult to see how the production of information identifying the location of such is necessary to facilitate the decision making function, how it is important to the proceedings, or how it is in a child’s best interests to compel production.
In this case however, the limited identification of harm does not outweigh the desirability of producing evidence to the court of a matter of importance to the proceedings, being as to the mother’s psychological vulnerability and parenting capacity as may be revealed by her engagement with counselling with C Organisation, under circumstances where she has adduced evidence from the same source to address such issues.
CONCLUSION
The application by the mother and C Organisation resisting production on the basis of protected confidence will be dismissed.
Orders will be made limiting access to the material.
The mother and C Organisation remain at liberty to object to the production of material in the basis of privilege, where such arises, in the usual manner.
I certify that the preceding fifty-eight (58) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Gill. Associate:
Dated: 16 July 2025
0
1