Are my notes confidential?

As featured in the Counselling Australia Journal, Volume 24, Number 2. With thanks to Michael Lynch Lawyers.


Professionals are often engaged to assist a party in navigating issues arising from the breakdown of their relationship. Family lawyers are frequently asked by these treating professionals ‘Are my notes confidential?’.

The starting point is non-confidentiality. Everything said to a GP, paediatrician, therapist, counsellor, psychologist and other allied health practitioners can be disclosed and it can be subpoenaed.

Why? So courts can learn the truth.

In parenting matters, the question that the Court must determine is “What is in the best interests of the child?”. This is the paramount consideration and if there are documents that can assist the Court to understand what parenting arrangements may meet the child’s best interests, then the Court should have access to them.

Practitioners such as psychologists and doctors have a responsibility to maintain client confidentiality as part of their ethical standards, clinical practice, and professional licensing regulations.

It is understandable that clients may become incredibly distressed when a subpoena is issued to their treating practitioner for their notes in circumstances where they thought that their personal health records were confidential.

The subpoena recipient (for example the psychologist or medical practitioner) and the person affected by the issuing of the subpoena (the husband or wife in the Court proceedings) may object to the production of documents under a subpoena.

Some of the grounds for objection include but are not limited to:

  • That the subpoena lacks a legitimate forensic purpose
  • That the subpoena is an abuse of process or oppressive
  • That the subpoenaed material is not relevant to the issues presented before the Court
  • That the information being requested is privileged


In a recent decision of Vitalis & Kazan (No 2) [2022] FedCFamC1F 601 (19 August 2022), the Court was asked to determine parenting arrangements for two children aged 8 years and 4 years.

In the proceedings, Ms Kazan served a subpoena on Ms Vitalis’s gender reassignment surgeon (“Dr O”) and on her medical insurer. Ms Vitalis objected on the ground of relevance.

It was noted by the Judge that “in any parenting proceeding any parties’ mental health issue is potentially relevant to the extent that it may impact on parenting capacity”.

Ms Vitalis accepted that her mental health was a relevant fact potentially in issue and did not object to subpoenas that Ms Kazan had issued to her identified treating mental health practitioners. She did object to the subpoena issued to Dr O on the basis that “the biological surgical procedures Dr O was involved in will not illuminate any issue relevant to parenting capacity” and was a “fishing expedition”.

Ms Kazan submitted that Dr O may have engaged in an assessment of Ms Vitalis’ mental health which was relevant to the issue before the Court. It was noted by the Judge (at paragraphs 21 and 22) that “ [A]s part of gender reassignment, the nature of the surgery might reasonably require the surgeon to satisfy themselves that the patient meets the criteria under the World Professional Association of Transgender Health Standards of Care Guideline. That might reasonably require the surgeon to engage in their own assessment of the patient’s mental health status. In this case… it is at least possible that Dr O was required to and did undertake his own independent mental health assessment of Ms Vitalis, taking into account Ms Q’s [Ms Vitalis’ treating clinical psychologist] opinion but not merely relying upon it.”

Due to the intimate nature of the surgery, Ms Vitalis maintained an objection to the subpoena on privacy grounds. It was also submitted that the Court “should control the use of subpoena in pursuance of the overarching purpose, of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (“the Rules”), being to facilitate the just resolution of disputes according to law and as quickly, inexpensively and efficiently as possible.

The Judge in this case noted that “whilst privacy grounds would be relevant if the information sought went only to the physical process, where it is conceded that there is a real possibility of a mental health assessment, and therefore a genuine forensic purpose, privacy is not a proper ground for objection. While Ms Vitalis’ position is understandable, given the sensitive nature of the procedures involved, the nature of the family law jurisdiction, in which the Court enquires into the welfare and best interests of children, means that the public interest and children’s interest in the Court having all available relevant evidence about a parent’s mental health outweighs the parent’s right to privacy.

The Judge went on to say “Whilst the Court should, and does, exercise close control over the issuing of subpoena as part of the application of the overarching purpose, I am not persuaded that in the context of these proceedings the subpoena to Dr O is inconsistent with the overarching purpose.”

It was submitted by Ms Kazan that the subpoena to Ms Vitalis’ medical insurance company was appropriate as it would give details of other medical practitioners who had treated Ms Vitalis that “were not disclosed, and who Ms Kazan says should have been”.

In many cases, the Judge said that the subpoena to the medical insurer “would be a step too far, but each matter requires consideration on its own facts.” Here he said (at paragraph 38) that “Where a party’s mental health is an issue in the proceedings, and where it appears that she has taken an approach to disclosure which raises issues about the selectivity and reliability of that disclosure, it may be appropriate to allow a subpoena… to ensure that the Court has the best available evidence when considering the best interests of the children.”

The Judge held in this case that there was a “genuine forensic purpose to each subpoena” in this matter and allowed access to the records produced by Dr O and the medical insurance company.


  1. Read the subpoena
  2. Write down your thoughts
  • What documents am I being asked to provide?
  • Do these documents exist?
  • Are the documents relevant to an issue in dispute?
  • Are the documents privileged?
  • Should I object to the subpoena?
  • Is the Subpoena being used for a proper purpose or is it too broad, oppressive, a mere ‘fishing expedition’?
  • What date do I have to comply by?
  • Have I received conduct money?
  • How much will it cost me to produce the documents (eg photocopying costs)?
  • Where do I send the documents?

3. Get legal advice, if required, and speak with your insurer.

Join us for ACA’s 2023 Mid-Year Update and Q&A

Join CEO Philip Armstrong and Deputy CEO Jodie McKenzie as they provide a mid-year update and answer questions live. They will also take a look at what the rest of 2023 has instore for ACA and members.

The event will be held via Zoom and will be available to watch at a later date. Click the here to register your attendance via Eventbrite:

Event details:
Tuesday, 8 August 2023, 6.00pm AEST via Zoom
Please check your local time.

Only registered participants will receive the Zoom link to join session. The link will be provided 2 days prior session, with reminders on the day of.

Do you have a question?

Members, don’t miss this opportunity to ask Philip and Jodie your questions. Members can submit questions live on Zoom during the session. Alternatively, email your questions ahead of time to [email protected], to ensure your question is not missed.

Professional Advice: So you want to be a Counsellor…. Part 4

So You Want To Be A Counsellor is a multi-part advice series where counsellors share with ACA their professional journeys and the things they have learnt along the way. As featured in the Counselling Australia Journal Summer 2023, Volume 23 Number 4.

In  part 4, Nutritionist and counsellor Melinda Overall tells us what she wishes she knew in the prelude to her career.

Looking back to your final year as a student (before starting your counselling career), what are the top three pieces of advice you would give?

1. Find a supervisor who you trust and who can help you grow in your practice – and start looking for them early.

2. Remember that you won’t be the right fit for every client, they might go elsewhere, and that’s totally ok. They need the right person to do their work.

3. Know that you have to keep doing your own work to grow as a person and practitioner.

Would you change your decision to become a counsellor? Why or why not?

Absolutely not. I love this work and really appreciate the privilege that it is to work with clients. My understanding of working with my nutrition clients and students has deepened in my 5.5 years of counselling practice. I had a 25-year career in human resources prior to studying nutrition (I’ve been a nutritionist for 10 years) and counselling, and I wish that I had studied counselling earlier. I’m currently planning on heading back to university to complete a Master of Counselling.

How do you describe the work that you do?

As I have the three different aspects to my work, describing it depends on which part I’m discussing. I describe my nutrition work as working with clients to improve their health and wellbeing through increasing their understanding about food and its impact on their health. This can include development of meal plans or general recommendations around diet. Information provided to clients might also include lifestyle recommendations. My work also includes analysis of diets and blood test results to determine any suboptimal micronutrient levels, and assisting to correct them with nutritional supplementation.

As a lecturer in clinical nutrition, I teach fundamentals of the above to students and supervise nutrition students in the student clinic. As a counsellor, I think I best describe my work as developing therapeutic and healing relationships with clients so that they feel safe to work through, contemplate and develop strategies to manage life’s stressors and difficulties. I view myself as a humanistic strengths-based practitioner who aims to assist people develop resilience and to improve their self-view.

Do you love your work? Why?

I do love my work. Mainly because I have three work streams and this ensures variety, different learning and exposure to different people and work settings. I also really appreciate the synergy between my work as a nutritionist and counsellor. My nutrition clients and counselling clients never shift to the other part of my practice. It is fabulous to recognise how the skills of each practice support the other, and improve outcomes for clients. This is especially so in the context of the gut–brain axis and recognising the significant role that food plays in mood. In all of my work streams, it is such a gift to be able to support people and to witness their growth.

How do nutrition and counselling combine and what is their importance to each other?

I am a university-qualified nutritionist and qualified counsellor working in private practice in Sydney’s inner west, and I am a lecturer in Nutritional Medicine at Torrens University. My career mission is to help people obtain optimal health through diet and lifestyle coaching with minimal supplementation.

I am passionate about food as medicine and am a firm believer in the concept of ‘food first’ wherever possible. The choices we make around food can significantly impact our health and wellbeing, for better or worse. With a busy lifestyle, it is easy to get lost in those food choices, but with a nutritional guide, you can make better decisions, get back on track and enjoy a healthier you.

COUNSELLING PERSPECTIVES | Sexology: A Personal, Professional Perspective

ACA Member, Karen Triggs, provides a detailed and firsthand account of sexology as a counselling profession. As featured in the Counselling Australia Journal Winter 2023, Volume 24 Number 3.

What is sexology?

Sexology is the scientific study of human sexuality from biological, psychological and social perspectives. This typically includes the study of anatomy, reproduction, sexual function, sexual health and the psychological and societal factors that influence sexual behaviour. Sexologists typically have undergraduate degrees in public health, medicine, social work, psychology or counselling, as well as other allied health professions.

In Australia, anyone can ‘set up shop’ as a sexologist and provide sex therapy, as there is no legal requirement for registration. The Society of Australian Sexologists (SAS – see is the peak professional body representing formally qualified sexologists who practice either as psychosexual therapists or educators. Its members are required to follow a stringent code of ethics and professional standards. SAS also offers an accreditation pathway for those who meet the stipulated supervision, clinical experience and professional development requirements. ASSERT NSW ( is a similar organisation.


What does a psychosexual therapist actually do?

Psychosexual therapists help people to resolve sexual issues and difficulties and have more satisfying sex lives, which in turn contributes positively to general quality of life.

Psychosexual therapists treat a wide range of issues, such as in desire discrepancy, painful sex, performance anxiety, gender identity and orientation concerns, arousal and orgasm challenges, sexual trauma, problematic compulsive sexual behaviour, infidelity, and erectile difficulties.

In addition to conventional counselling and psychotherapy modalities and interventions, most psychosexual therapists use PLISSIT (permission, limited information, specific suggestions and intense therapy) – a valuable framework that facilitates a sensitive, client-centred approach to case formulation and treatment. Tertiary-qualified therapists are also required to complete the Sexual Attitudes Reassessment (SARS), which goes a long way to ensuring sex positive and inclusive practice.

I completed my SARS as part of the Curtin University postgraduate program and found the unit absolutely riveting. I remember some very interesting and unexpected conversations I had with my grandmother about the topics we covered. In my own practice, I often integrate somatic art therapy and internal family systems in my sex therapy sessions, both with individuals and partnered clients. My current area of interest is in exploring the intersection of ADHD and sexuality further.

What does a sex therapy session look like?

There is a common misconception that psychosexual therapists use ‘hands-on’ techniques in sessions. This is not at all true. Formally qualified psychosexual therapists will not allow nudity, erotic touch or any other sexual activity during sessions. Sex therapy is, therefore, not that different from traditional talk-based counselling. Any practical exercises requiring touch that may be recommended are always completed by clients in the privacy of their own home.

Clients are often anxious or embarrassed when they arrive at the first session, so it is important for the therapist to help clients feel at ease when talking about sex. The therapist needs to have a clear and comprehensive understanding of all the bio/psycho/social factors contributing to the problem, and a detailed sexual history is usually completed with each client. An important part of our work is to help clients shift from a narrow ‘intercourse = sex’ focus to one in which pleasure, sensual touch and connection is the focus. It is quite common for clients to have false beliefs about sex, and it is our responsibility to provide clear and accurate information.

Is there much of a demand for sex therapy?

Yes, in the last few years there has been a rapidly increasing need for sex therapy and we simply cannot keep up with the current demand. I would encourage counsellors interested in sexuality to learn more, either through sexology-focused professional development, supervision with an accredited psychosexual therapist or postgraduate training.

Where to find courses and resources to develop your career in sexology?

In Australia, the University of Sydney offers a postgraduate program in sexual and reproductive health – the ‘Psychosexual Therapy Pathway’ – which is a specialist pathway for registered counsellors, social workers and psychologists. Curtin University in Perth provides several options for study, which include the Graduate Certificate in Sexology, Graduate Diploma in Sexology and Master of Sexology (Professional). Entry into these courses requires applicants to hold a recognised bachelor degree. Both universities work closely with the SAS to develop professional standards for Australian sexologists.

Some of my favourite go-to resources include:

■Sexual intelligence: what we really want from sex and how to get it by Marty Klein

■Come as you are by Emily Nagoski

■Sex made simple: clinical strategies for sexual issues in therapy by Barry McCarthy

■Good loving, great sex by Dr Rosie King

■LGBTQ clients in therapy: clinical issues and treatment strategies by Joe Kort

■EMDR therapy and sexual health: a clinician’s guide by Stephanie Baird

Announcing Michelle Mitchell as Keynote Speaker at the ACA 2023 Conference

When it comes to essential dates for your professional calendar, circle this one in red! From September 29th to October 1st, Sydney plays host to the unmissable ACA 2023 Conference. This event sets the stage for discussions, debates, and discoveries centered around resilience in mental health. It’s a golden opportunity for mental health professionals to gather, grasp, and grow from the pioneering breakthroughs and transformative strategies in resilience practices.

View the full program here.  Visit for more information.

Introducing one of the Keynote Speakers: Michelle Mitchell

Michelle began her career as a classroom teacher but soon discovered a special interest in wellbeing. In 2000 she quit teaching and established a harm prevention charity, called Youth Excel. Her days were filled with running small group support programs for girls ‘at risk’ of dropping out of education, and she soon became well known for successful outcomes with tweens and teenagers who did not flourish under more traditional forms of therapy. Over the next 20 years, Youth Excel continued to grow and expand. The Youth Excel Centre was established – a multi-disciplinary clinic offering psychology, counselling, mentoring for children and teenagers. It was there that her team of twelve offered big-hearted, innovative services to over 150 families each week. Michelle personally had the privilege of working with many hundreds of young people and their families as a mentor. Today Michelle uses her experience to write and speak in schools, community events and through media. Her best-selling parenting and children’s resources, including the highly popular Everyday Resilience Journal, have sold over 100,000 copies worldwide and have been translated into several languages.

Other highlight presentations include:

  • Dr Mike Millard, psychiatrist and clinical director of the Clinical Research Unit for Anxiety and Depression
  • Dr Jan Orman, GP consultant at Black Dog Institute
  • Elise Carrotte, Clinical, Quality and Evaluation Advisor at SANE

Miss it, and you miss out! Visit for more information.


NAIDOC Week, observed from the first Sunday in July for one week, celebrates the history, culture and achievements of Aboriginal and Torres Strait Islander peoples. The acronym NAIDOC stands for National Aborigines and Islanders Day Observance Committee, which was originally National Aborigines Day Observance Committee. The theme for NAIDOC Week 2023 is ‘For Our Elders’, shining a light on the significant role of elders in the communities and families of First Nations peoples.

ACA, located on Yuggera Country, acknowledges the Aboriginal and Torres Strait Islander people as the traditional custodians of the land on which we live and work.


How to get involved?

The history, culture and achievements of Aboriginal and Torres Strait Islander peoples can be celebrated at any time of year, not just during NAIDOC Week. Click here to download the NAIDOC Week Toolkit for inspiration and recommendations to celebrate, create meaningful conversations, and amplify the voices of Aboriginal and Torres Strait Islander peoples.

NAIDOC Week 2023


The 2023 National NAIDOC Week Poster incorporating the Aboriginal Flag and the Torres Strait Islander Flag (licensed by the Torres Strait Island Council) by Bobbi Lockyer, a proud Ngarluma, Kariyarra, Nyulnyul and Yawuru artist, born and based on Kariyarra Country in Port Hedland. Bobbi is the winner of the prestigious National NAIDOC Week Poster Competition for 2023 with her entry, For Our Elders.

ACA onboards HCF, Australia’s largest not-for-profit health fund!

Over the past months, ACA has been in discussions with HCF for the purpose of supporting the fund with the onboarding of counselling as a benefit for their members. ACA is pleased to announce that our discussions have concluded, and as of 1 July 2023, HCF now includes benefits towards counselling consultations as part of their extras program to provide their members with additional mental health support, subject to annual limits, waiting periods and any extras package benefits.


What is the eligibility to become a HCF recognised provider for counselling?

  • Level 3 or 4 membership with ACA
  • Bachelor of Counselling (AQF Level 7) or Master of Counselling (AQF Level 9)
  • Current First Aid Certificate (HLTAID003/HLTAID011)
  • Current certificate of professional indemnity and public liability insurance ($2M cover professional indemnity and $20M cover public liability)
  • You must be in private practice – this means that you must be in a professional practice (whether as a sole trader, partnership, or group) that is self-supporting where your accommodation, facilities and services are not provided, funded, or subsidised by another party such as a hospital or public funded facility.

How do I apply for a HCF provider number?

Before applying, please ensure you read: HCF Terms and Conditions for HCF Recognised Providers of Extras Services.

Once you have reviewed and agreed to the above, you can apply online through your ACA Member Login, and upload your supporting documents for your application here.


Please do not contact HCF to apply for a provider number. All applications are made through ACA through your Member Login page. Once you have completed all parts of your application, we will email you to let you when it has been processed and sent to the fund for processing.

For more information, please download our HCF resources here.


Join your peers at the ACA 2023 Conference!

Join your peers and sector professionals to explore resilience-building throughout the mental health sector!

ACA is excited to be bringing our Annual Conference to Sydney, New South Wales, in September of this year!
The Conference will be held over three days, continuing our tradition of delivering top-notch training, cutting edge workshops and invaluable opportunities to network and learn from industry experts.

Tickets are limited, don’t miss this opportunity!


The Conference offers a range of programs and packages to build the professional capacity of front-line mental health providers, academics, researchers, and private practitioners, by providing insight into the delivery of mental health services at all levels.


Take advantage of the early bird promotion running until Monday 17 July 2023, 12.00am. Don’t miss out!

For more information or to register, visit:

Did you know you can now renew online?

ACA Members who have met the requirements for Supervision and Ongoing Professional Development can now renew online!

Online renewals can be completed during the final month of your current membership period.

5 Steps to Renew Online:

  1. Log into the ACA Membership Portal.
  2. You will be redirected to the your Account Page.
  3. Ensure you have completed the annual requirements for Supervision and Ongoing Professional Development.
  4. View the menu on the left-hand side and click on the green ‘Renew My Membership’ button.
  5. Follow the prompts to renew.

Below are online tutorials to assist members in uploading Supervision and OPD requirements online.

“How to upload your supervision hours” instructional video:

“How to upload your OPD points” instructional video:

Professional Advice: So you want to be a Counsellor…. Part 3

So You Want To Be A Counsellor is a multi-part advice series where counsellors share with ACA their professional journeys and the things they have learnt along the way. As featured in the Counselling Australia Journal Spring 2022, Volume 23 Number 3.

Michelle Sparkes, Supervising Counsellor at the Butterfly Foundation, shares her professional journey and tips for new professionals.

Tell us about your work.

I work with individuals, 16 years and older (and their families, carers and partners, as appropriate), to help them recover from the grip of disordered eating and body image concerns. Ultimately, these issues reflect a way of coping with challenging self and life experiences. I love this work and have been helping individuals recover from disordered eating for over 25 years. I take a holistic, whole-person approach to these challenging health and life-consuming problems, drawing on my professional experience as a physical and mental health clinician, and my lived experience of anorexia, eating disorder not otherwise specified (EDNOS) (now called OSFED – other specified feeding and eating disorders) and binge eating in my teen and early adult years. I also work as a supervising counsellor for the Butterfly National Helpline (Australia’s national charity for  eating disorders), providing oversight, training and supervision to helpline counsellors and working directly with consumers to provide information, support, guidance and referrals.

Do you love your work? Why?

My work at Butterfly gives me the opportunity to provide in the moment support to consumers and to invest in the training, upskilling and supervising of new/ er counsellors. My private work gives me the opportunity to work with individuals in a deeper, more substantial way and to witness their transformation over time. It is a pleasure and a privilege to do this work.

Looking back to your final year as a student (before you started your counselling career), what are the top three pieces of advice you give?

1. There are no stupid questions. Glean as much as you can from the practitioners you are learning from – your questions and their answers will help everyone.

2. Value the relationships and the different perspectives and life experience of your teachers and colleagues. You are members of the counselling body, and we are all richer for our diversity of insight, understanding and experience.

3. Volunteer for role-plays – these are rich opportunities for learning. Hearing and feeling yourself respond to a counsellor’s presence, tone, attitude and questions are incredibly valuable and you may never have a better opportunity to do this.

Imagine yourself entering your first counselling session as a qualified counsellor. What is the knowledge or advice you wish you had had?

Relax, you don’t need to know everything. Put your training and expectations to one side and focus on the person in front of you. Your capacity to connect with this person, to understand their needs and concerns and their hopes and desires is the most important thing for you to focus on right now. Be present, be warm, be relaxed, listen, listen, listen, never assume, observe, reflect, respond and let this process gently unfold and guide you.

Would you change your decision to be a counsellor or psychotherapist? Why?

I love being a counsellor in the eating disorder space – it’s a bit of an umbrella term, but it allows me the opportunity to provide the support that is right for the person I’m working with. A frustration for me is that, despite being registered as a counsellor since 2006 and amassing a huge amount of clinical experience and further training, I can’t offer my clients the benefit of a Medicare rebate under the Eating Disorder Plan, while a psychologist with the eating disorder credential can. Nor can I (based on my current ACA level) offer my clients much in the way of health fund rebates. It’s a frustration for me and a disadvantage for my clients. I am a credentialed eating disorder clinician, I‘ve worked in the eating disorder recovery space for over 25 years, I’ve authored books and developed eating disorder recovery programs and training, I’ve supervised counsellors on the Butterfly Helpline for the past three years and I’ve helped hundreds of people recover from disordered eating in private practice. This Medicare rebate regulation doesn’t feel like a match or true reflection of my accumulated training, knowledge, skills and experience.

What is your definition of counselling?

I like this definition: Professional counselling is a safe and confidential collaboration between qualified counsellors and clients to promote mental health and wellbeing, enhance self-understanding and resolve identified concerns. Clients are active participants in the counselling process at every stage. ■