Protected Confidences in Family Law: Keeping Sensitive Records Out of Australian Courts
When sensitive information should stay out of the court process
Family law disputes often involve intensely personal issues. Many parents are understandably concerned about what happens to counselling notes, medical records, or information shared with support services after separation. A common question we hear is: “Do I have to hand over private records if my case goes to court?”
Since changes to the Family Law Act on 10 June 2025, the answer is increasingly clear: not necessarily.
Courts now have stronger powers to protect sensitive information, particularly where disclosure would cause harm to a parent or child.
What Is a Protected Confidence?
A protected confidence is confidential information shared with a professional service in the course of receiving support or care. In family law, this most commonly includes information shared with:
doctors, psychologists or counsellors
health services
specialist sexual assault services
specialist family violence services
Since 10 June 2025, the Family Law Amendment Act 2024 (Cth) amended the Family Law Act to allow Australian family courts to have stronger powers to prevent this information being subpoenaed, inspected or used as evidence where disclosure would cause harm. Read more about subpoenas here.
The person providing the service is called the “confidant.” The person the information relates to is the protected “confider.” This may be a parent or a child.
The law recognises that people must be able to seek help safely, without fear that their most personal disclosures will later be used against them.
These protections are not about hiding relevant evidence. They exist to ensure that the family law system does not become another source of harm after separation. They support safe engagement with health and support services, reduce the risk of legal processes being used as a form of ongoing control, and help keep children out of adult disputes.
Why This Area of Law Was Strengthened
The reforms reflect what many families already experience.
Private records, particularly counselling or medical notes, have sometimes been sought not because they are genuinely needed, but as a way to apply pressure, gain leverage, or continue patterns of control after separation. For many people, having this information exposed is traumatic and can deter them from accessing support in the future.
The reforms are designed to reduce harm, prevent misuse of the court process, and allow families, especially those affected by family violence, to engage with health and support services without fear.
What Information Can Be Protected?
Sensitive information that may be protected includes confidential material relating to:
medical treatment or mental health care
counselling or therapy
health records or prescriptions
support provided by specialist family violence or sexual assault services
This applies to information about you, or about your child.
What Protection Can the Court Give?
The court can make orders that:
sensitive information does not need to be disclosed to the other party
the information cannot be subpoenaed from a professional or service
documents cannot be inspected or copied, even if held by the court
the information cannot be relied upon as evidence in the proceedings
If such an order is made, you are not required to provide the information to the other party, even if they request it.
How the Court Decides Whether Information Should Be Protected
The court does not automatically exclude information. Instead, it undertakes a careful balancing exercise. The judge must be satisfied that disclosure is likely to cause harm to a parent or child and that harm outweighs the benefit of the information being used in the case. Harm may include psychological distress, emotional harm, impacts on a parent’s capacity to care for a child, or other serious consequences.
The court also considers whether:
the information is truly necessary, or whether other evidence is available
the harm can be reduced by limiting access
the information has already been disclosed elsewhere in the proceedings
the person affected opposes disclosure
Where children are involved, their best interests remain the paramount consideration
Children’s Records Are Treated with Particular Care
Courts are especially cautious with children’s counselling and wellbeing records. Children are not participants in their parents’ conflict, and the court seeks to avoid undermining their trust in therapeutic support. Automatically exposing private counselling discussions can cause real harm and discourage children from seeking help when they need it most. Where possible, courts often prefer independent expert evidence rather than raw counselling notes created for therapeutic, as opposed to forensic, purposes.
Do You Need to Share Sensitive Information Before Court?
If you are negotiating before court, you are generally required to take steps to resolve your matter first. Whilst you have a duty of disclosure, you do not have to share sensitive information if you would later seek an order protecting it, and if sharing it is likely to cause harm. This can be particularly important in cases involving family violence or safety concerns.
Need protection from family violence? Read more here.
How Do You Apply for Protection?
An application for sensitive records to be kept out of Court can be made either when commencing or responding to proceedings, during proceedings, or when objecting to a subpoena seeking sensitive information.
In all cases, the court must be provided with evidence explaining why disclosure would likely cause harm.
How We Can Help
At Dorter Family Lawyers & Mediators, we regularly advise parents dealing with subpoenas and sensitive information. We assist with protecting counselling, medical and wellbeing records, managing disclosure in high‑conflict or family violence matters, and ensuring court processes prioritise safety and children’s welfare.
If you are worried about private information being used in your family law case, early advice is critical.
FREQUENTLY ASKED QUESTIONS
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Not automatically. Even if records exist, they are not automatically shared in family law proceedings. If the information is confidential and sharing it is likely to cause harm to you or your child, the court may make orders preventing it from being disclosed or used.
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No. A subpoena requires documents to be produced to the court, but that does not mean the other party can inspect them or that the judge will rely on them. Where documents contain protected confidences, access can be restricted or refused altogether.
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Children’s counselling and wellbeing records are treated with particular care. Courts recognise that exposing private therapeutic conversations can harm children and undermine their trust in support services. In many cases, the court will prefer other forms of evidence rather than counselling notes created for therapeutic purposes.
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These applications are technical and highly fact‑specific. Getting early advice can make a significant difference to what information is protected and how the court deals with it.
Need Advice?
Contact Dorter Family Lawyers & Mediators for confidential advice tailored to your circumstances.
Prepared by Iona McCall at Dorter Family Lawyers & Mediators. This article provides general information only and does not constitute legal advice.
