In family law, it is not uncommon for parents to be required to share sensitive information about themselves or their children. Sensitive information can include highly personal and confidential medical or psychological information, and while this evidence will often be relevant to a family law dispute, in other circumstances there may be good reason for it not to be disclosed.
The new law
Several key amendments were made to the Family Law Act (Act) on 10 June 2025, including amendments designed to retain the confidentiality of private information.
The new Division 1B of the Act recognises the need to safeguard personal information. A "protected confidence" is defined as a "communication made 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" to another person (the protected confider), and in circumstances in which the confidant is under an obligation not to disclose communications made to them by virtue of the nature of their relationship (such as patient / client confidentiality)."
A "professional service" includes a health service, a specialist family violence or sexual assault service, or services provided by a pharmacist.
Under the new Division, the Federal Circuit and Family Court of Australia (Court) can order that evidence is not permitted in a proceeding if that evidence contains protected confidences. An application to withhold the evidence can be made by the Court of its own volition, by the confidant or the protected confider.
In making an order for a protected confidence, the Court must be satisfied that it is likely that harm would or might be caused to the protected confider or to a child if the information was released, and that the nature and extent of that harm outweighs the desirability of allowing the evidence. Harm can include physical harm, psychological harm or oppression, mental distress, a detrimental effect on the other persons' capacity to care for the child or financial harm. If the order is made in the context of parenting proceedings, the Court must regard the welfare of the child as the paramount consideration when determining whether to disclose the information.
The Court must also address the value and importance of the evidence when deciding whether to allow the application, as well as the likely effect on the protected confider and the child. The Court can consider whether there are any means to limit the likely harm as well as the public interest in preserving the confidentiality of protected confidences.
What this means for family law litigants
These legislative amendments were designed to strike a balance between the need to ensure all relevant information is before the Court, with the competing need to protect disclosures made in the context of certain professional relationships, including sensitive therapeutic information. Without the benefit of these protections, victims of family violence or sexual assault may be reluctant to seek professional support for fear that their records will be subpoenaed and disclosed to their former partners. The protection of family violence and sexual assault service records recognises the highly sensitive and confidential nature of these records and the harm and distress that may be caused by their disclosure to victims and their children. The release of such information can also, in certain circumstances, pose real and genuine risks to the safety and wellbeing of victims and children.
A step in the right direction
These provisions are an important legislative amendment that will help to better support the safety of victims of family violence and ensure they can access appropriate therapeutic support without fear of such support records being used as evidence. Although it is too early to tell how effective they will be, they are an important signpost from the Parliament and the Court as to their overarching priority of keeping parties and their children safe following a separation.
Our Family & Relationship Law team has extensive experience supporting and advising clients through complex family law cases. We are committed to staying informed about recent legislative developments and emerging case law.
If you require any assistance, please do not hesitate to contact our experienced Family and Relationship Law team.
All information on this site is of a general nature only and is not intended to be relied upon as, nor to be a substitute for, specific legal professional advice. No responsibility for the loss occasioned to any person acting on or refraining from action as a result of any material published can be accepted.
