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Subpoena survival guide

Confidentiality and family law

Family law cases are about parenting disputes or about property settlements after relationship breakdown. In parenting cases, the court’s overriding concern is the best interests of the child, with a focus on safety.

Family law is Commonwealth law and cases are heard mainly in the Federal Circuit Court and the Family Court (“Family Law Courts”). The law encourages parents to agree about parenting without having to go to court and mediation and counselling services are an important part of the family law system. Mediation is called family dispute resolution (FDR) in family law.

If you are subpoenaed your client is probably a party to the proceedings: parties to proceedings have to be notified of all subpoenas that are issued, so your client should already know about it. However, it is still important to seek your client’s views on the production of your records about them, especially if the subpoena has been issued by another party or by the Independent Children’s Lawyer who is appointed to represent the interests of the child. In some cases your client may not know about the subpoena because they are just a witness, not a party, so it is important to always try to notify your client.

Confidentiality in mediation and counselling

The Family Law Act protects the confidentiality of records created by accredited Family Dispute Resolution Practitioners (FDRP) or accredited Family Counsellors (FC), and records created as a result of a referral to an associated professional by an accredited FDRP or accredited FC.

The protections are exceptionally strong: even a Judge does not have the power to compel those services to show their records. The aim is to encourage adults and children to engage in frank and genuine efforts to resolve their family law conflicts and to address personal concerns. But services must disclose a communication made in family counselling or FDR if it is necessary to protect a child at risk or if there is a serious and imminent threat to life or health of a person; and they can disclose if consent of the client is given (but see below).

This is an area of law where there is current discussion about how far the confidentiality provisions apply. For example, an accredited counsellor may choose not to disclose a counselling record even if consent is given;27 and the confidentiality protection for FDR may not extend to the intake and assessment process for the FDR.28

TIP / If you are an accredited family dispute resolution practitioner or family counsellor (or your records were generated from their referral to you) and you are subpoenaed in family law or other type of case, talk to a lawyer.

Draft letter to Court – Family law proceedings Protections for accredited counsellors and FDRPs

Note: This letter of objection should be adapted and marked ‘Attachment A’ and attached to the completed ‘Notice of Objection – Subpoena’.

Dear Registrar,

Subpoena to Produce in [Insert case name and number]

Please find attached a Notice of Objection Form for the Subpoena to Produce served on me by [name of party to proceedings].

The documents are not produced for the following reasons:

[Adopt and insert if applicable] I am an accredited Family Counsellor and the documents are records created during the counselling process. The protections of section 10E Family Law Act apply (and as interpreted to apply by the case of Uniting Care-Unifam Counselling and Mediation & Harkiss & Anor [2011] Fam CAFC 159).

[Adopt and insert if applicable] I am a domestic violence support worker [insert your role], and the documents are records created as a result of a referral from an accredited Family Dispute Resolution Practitioner [insert name]. The protections of section 10 J of the Family Law Act apply (and as interpreted to apply by the case of Uniting Care-Unifam Counselling and Mediation & Harkiss & Anor [2011] Fam CAFC 159).

I can be contacted on [insert contact details]

Yours sincerely,
[Name]
[Title]
[Agency]

27 UnitingCare – Unifam Counselling and Mediation & Harkiss & Anor [2011] FamCAFC 159 where the family counsellor was not obliged to disclose communications even where consent was given by the clients.
28 Rastall and Ball [2010] FMCA Fam 1290 and Holden and Holden [2015] FCCA 788.

Other record holders

Other service providers and record holders do not have specific protections. If they want to maintain the confidentiality of their records, they have to do it by raising general objections to subpoenas (see Objecting to a subpoena).

Although the family law courts’ focus is the best interests of the child, your objections will help ensure that they are aware of any potential risk of harm to your client caused by unnecessary disclosure of sensitive material. You could refer to the public interest considerations underpinning SACP in your response (see Why would a court override a victim's privacy?).

When are records relevant?

In parenting cases, the documents requested will be considered relevant if they can help establish what is in the best interests of the child. They could be used, for example, to support or disprove:

  • a claim that a child is at risk of harm from one of the parties;
  • claims of family violence and sexual abuse;
  • allegations of mental or emotional instability in the other party; or
  • the fact that a spouse’s ability to make financial contributions during the relationship has been affected by family violence.

In some family law cases, producing notes or giving evidence about therapeutic services may help a victim of sexual assault or domestic violence and their family. In those cases the positives of disclosure may outweigh privacy concerns.

TIP / Family violence is one of the considerations the family courts can take into account. Family violence includes physical, emotional, psychological, sexual, financial and socially isolating abusive behaviours.

Reasons to produce records

Assistance to a child victim of family violence

Access to records is often sought by a parent to help the child victim of abuse. Records may help the court determine whether there is a risk of harm to the child if certain parenting orders are made – such as ordering a child to spend time with a parent who is alleged to have sexually abused the child. Sexual assault records are often requested or subpoenaed by the non-offending parent to help support allegations about sexual abuse of the child and demonstrate the unacceptable risk to the child of contact with the other parent. The non-offending parent may have no other objective evidence to support the child’s allegations of abuse.

Assistance to an adult victim of family violence

A person who alleges that they were subjected to family violence by their former spouse may not have reported the abuse to the police or may want further evidence to support claims of violence by the former spouse. This might be to establish risk of harm to the child or to negotiate the practicalities of sharing time with the child in a way that avoids opportunities for abuse. The records may be used to provide evidence of abuse.

Children’s evidence

Children only rarely give evidence in family law cases, though the court can give special permission for them to do so. Disclosing counselling records can help avoid the need for a child to swear affidavits, give oral evidence or be cross-examined.

Reasons to object to production

Breach of confidentiality

If your records are not protected by the special provisions relating to accredited FDRPs or family counsellors these reasons can be used to object to the production of records based on breach of confidentiality:

  • it can damage the relationship of trust between you and your client;
  • the perpetrator can learn about the feelings, thoughts and pain experienced by the victim;
  • issues raised in the notes can be used to cross-examine the other parent or other witnesses, which may further damage a child’s relationship with one parent (or both parents);
  • information obtained from the notes may enable ongoing abuse or retribution through emotional blackmail or threats; and
  • if there are police investigations into allegations of child sexual abuse which are still open at the time the family law subpoena was issued, producing the records could circumvent the strong protections provided by SACP and potentially prejudice any future criminal proceedings.

TIP / These arguments can be useful anytime you are objecting to producing or using confidential material in the Family Courts if your client has experienced family violence.

General protections

There are some limited protections for third-party records in family law proceedings other than those of accredited family counselling and family dispute resolution providers.

It is important for third parties to be able to raise objections to subpoenas for their records; it is then up to the court to make decisions on objections and make orders for the access and use of the records.

You may raise a general objection to prevent the production of documents or to limit the right to inspect or copy them. Even if the court rejects your objection, it can still refuse to order production.

Consider the general grounds for objection to the validity or substance of a subpoena such as whether the documents are relevant or the technical rules have been complied with (see Objecting to a subpoena).

TIP / The sexual assault communications privilege (SACP) does not apply in family law. The professional confidential relationship privilege can apply in family law parenting matters in NSW subject to the best interests of the child being the paramount consideration: Family Law Act Section 69ZX(4)(b).

Who can object to a subpoena?

The following parties may object to a subpoena in family law proceedings:

  • a party to proceedings;
  • an Independent Children’s Lawyer;
  • a person who is named in a subpoena; and
  • a person with ‘sufficient interest’ in the subpoena.

One example of a person with a ‘sufficient interest in the subpoena’ would be a person who is not a party but is the subject of the records requested. The court will decide whether or not a person making an objection has ‘sufficient interest in the subpoena’ before hearing their objection.

TIP / If someone else objects to the subpoena you received, they must notify you in writing.

How to respond to the subpoena

There are guides for parties served with subpoenas in family law cases. These outline their rights and responsibilities, and options and procedures relating to subpoenas, including steps for objecting. The Family Court requires its guide to be served with each subpoena. Both guides are available online at www.familycourt.gov.au in the publications section.

If you are going to comply with the subpoena

In person: go to the Registry on or before the date for production in the subpoena and produce the documents.

By post or delivery: make sure the documents arrive not less than 2 days before the date for production (send by registered post so you have a record of the package’s arrival).

TIP / If you have not been able to file a Notice of Objection within the time limit you can still try to file it. Write a note giving your reasons for the delay. Notify the other parties as well.

If you are going to object to the subpoena

Do the specific confidentiality protections apply to you?

Are you:

  • an accredited family counsellor under the Family Law Act? OR
  • an accredited family dispute resolution practitioner under the Family Law Act? OR
  • in possession of records generated by a family counsellor or family dispute resolution practitioner or in the course of family counselling or family dispute resolution by an accredited practitioner as defined in the Family Law Act? OR
  • in possession of records created following a referral by an accredited family dispute resolution practitioner or an accredited family counsellor?

If you answer yes to any of these questions then you will probably be covered by one of the protections in the Family Law Act.

Communications with family consultants are not confidential, and may be used in court.29

If you think your records are not specifically protected, see the section on reasons to object to production (see Objecting to a subpoena).

29 www.familycourt.gov.au/wps/wcm/connect/fcoaweb/reports-and-publications/publications/child+dispute+services/family-consultants

What happens if you object to the subpoena

In family proceedings, subpoenas are not listed before the court unless an objection is received. When you object, the court will set a future date to hear the objection. You still need to provide the material by the date listed on the subpoena. The court will decide what to do with it after hearing the objection.

Go to court if possible

This is the only way to ensure your arguments against disclosure or inspection are heard and argued before the court in response to arguments by the party seeking production.

Go to court on the date nominated on the subpoena. If you do not have a lawyer to represent you, you can represent yourself. The family law courts often deal with self-represented litigants.

If the proceedings are still in the preliminary stages the objection will probably be heard by a Registrar. If a Judge has already been appointed and proceedings are at a more advanced stage, you may be making your objections to the Judge.

The court will hear your objections and will listen to your arguments and will also consider the other parties’ arguments. You may be able to narrow the scope of records that are in dispute by negotiating with the parties directly or with the help of the court.

You may agree to partial production.

Where you are considering agreeing to a partial production of the documents, bring two copies of the documents to court: one is the complete and intact set of documents requested under subpoena, and the other is the redacted version,30 from which everything that you object to producing has been taken out. Providing the redacted version may help narrow the issues in dispute.

The Judge or Registrar can look at the un-redacted version and hear legal argument and make a ruling on access and copying.

Once there is agreement on what is to be produced, ask the Judge or Registrar to make orders for any relevant limitations on inspection (such as no photocopying).

30 Redacted means blacked out and re-photocopied so the print or writing cannot be seen.

If you cannot go to court

File a written objection. This means sending to the court:

  • the documents the subpoena asks for to the court (in a sealed envelope);
  • a letter outlining your objection to production and any limitations on access you are seeking (see sample letter below).
  • the relevant notice form (‘Form F’ in the Family Court of Australia or ‘Notice of Objection’ in the Federal Circuit Court); and

Place all of this into a second envelope and address it to the court.

Draft letter to Court – Family law proceedings
General protections

Note: This letter of objection should be adapted and marked ‘Attachment A’ and attached to the completed ‘Notice of Objection – Subpoena’.

Subpoena to Produce in [Insert case name and number]

Please find attached a Notice of Objection Form and a sealed envelope which contains the documents referred to in the Subpoena to Produce served on me by [name of party to proceedings]. I object to the production of these documents for the following reasons:

  1. I am a sexual assault counsellor [insert your role].
  2. The documents in the sealed envelope contain sensitive therapeutic records. Production of these documents would harm my client.
  3. Production would undermine the professional confidential relationship I have established with my client [insert other reasons as relevant].

I understand that the best interest of the child are paramount in family law, however I ask that the issuing party should be required to seek information from other sources.

Alternatively, I ask that only the Judge hearing the case view the material.

I regret I am not able to attend Court to make this request in person because: <Insert here the reasons that you are not able to attend >

Yours sincerely,
[Name]
[Title]
[Agency]

Orders a court can make

The court can order:

  • disclosure;
  • no access to the records by the parties;
  • partial access; or
  • full access.
Court orders for access and use of the documents

Where the court has ordered the production of subpoenaed documents it can then decide what type of access or inspection it will allow. Common orders restricting access include:

  • inspection by lawyers only;
  • redaction of witness details;
  • right of first inspection; and
  • no photocopying.

The return of documents

In both the Federal Circuit Court and the Family Court, the Registry Manager must return all documents provided under subpoena.31

If you do not need the documents to be returned, you can give the court permission to securely dispose of them.

In the Federal Circuit Court you can inform the court in writing when you comply with a subpoena.

In the Family Court you must fill out the notice on page 4 of the Family Court form that should be served on you in conjunction with the subpoena.

TIP / Always send documents to the Court. Do not send them directly to the other party.

31 For more detail see the Federal Circuit Court, ‘Information for persons served with a subpoena

Can a person use documents produced in court proceedings for some other purpose?

No, a person who inspects or copies documents following orders for production must only use the document for the case, and must not disclose the contents of the documents or give a copy of them to anyone else without the court’s permission. Publishing the documents is a contempt of court, punishable by a fine or imprisonment.

Concurrent proceedings

It is possible for family law and criminal proceedings to be running at the same time: for instance where there is an allegation that a parent sexually abused their child and both criminal and family law proceedings follow.

Usually, the Family Courts will adjourn their proceedings until the criminal matter is finalised because the outcome of the criminal proceedings will affect their decision.

There are different rules about the confidentiality of subpoenaed records in these two jurisdictions. This means that material that is protected in the criminal court may not be protected in the Family Courts. In this situation, it may be advisable to indicate to the Family Court that there are criminal proceedings also underway, and to seek the same protections in the Family Court. You should do this by lodging a formal objection.

Such an application will not always be successful, because the Family Court can override state court decisions. His Honour Joe Harman (FMC) described the principle this way:

“The family court can override state or territory protections of confidentiality if it is consistent with its jurisdiction. This is referred to as the ‘paramountcy principle’ so, for example, the court in a children’s matter would have to consider if the best interests of the child were in conflict with the application or preservation of a state or territory protection. If there is a Commonwealth legislative prohibition such as the confidentiality protections for [family dispute resolution practitioners] and [family counsellors] then the paramountcy principle cannot apply to override statute.”32

32 Harman, J ‘Confidentiality in Family Dispute Resolution and Family Counselling Cases and Why they Matter’, Journal of Family Studies, 2011, Vol. 17, No. 3, pp. 204–12.

OTHER STATES AND TERRITORIES

If you receive a subpoena or another type of request for your records for a court case in another state or territory, talk to a lawyer.

Many lawyers only practise in their own state or territory, so you may need to find a lawyer in the state or territory where the legal proceedings are taking place. For referrals to interstate lawyers, contact the law society or, for women clients, the Women’s Legal Service in your state. See the Useful contacts section for details.

You can also contact whoever sent you the subpoena with any queries about the subpoena.