On 10 June 2025, certain amendments to the Family Law Act 1975 (Cth) (the Act) came into effect. Those amendments, which are contained in new Part XI, Division 1B of the Act, provide a statutory power for courts to protect certain sensitive information from being disclosed or used as evidence in family law proceedings. At their core, the amendments are designed to better protect sensitive information and limit the harm which that information can cause to those involved in family law proceedings, including parents and children.

This article will focus on the court’s power to make a direction, under Part XI, in relation to a subpoena to produce documents. This includes a direction that a person or organisation need not comply with a subpoena. This article will be particularly relevant to organisations and individual professionals (including counsellors, social workers, and doctors and other medical specialists) who are providing a health service, or a specialised sexual assault or family violence service, and who may receive subpoenas in family law proceedings seeking production of their records.

The amendments operate alongside the existing grounds for objecting to a subpoena, which are outside the scope of this article. This article is also limited to family law proceedings in the Federal Circuit and Family Court of Australia. In particular, it does not apply to proceedings before the Family Court of Western Australia.

Background to the amendments

The disclosure of sensitive information in family law proceedings – particularly information arising out of professional confidential relationships – can have harmful effects. These can include deterring individuals who require therapeutic assistance from seeking that assistance, or otherwise openly engaging with it. At the same time however, disclosure of sensitive information may assist the court in determining the issues in dispute. Ultimately, the amendments seek to strike a balance between these competing interests. In parenting proceedings, the best interests of the child are the paramount consideration in this exercise.

What information is protected?

The amendments apply to any document or information that records, discloses, or relates to a ‘protected confidence’. A ‘protected confidence’ is defined under the Act, but in general terms means sensitive information disclosed in the course of, or in connection with, a person’s relationship with a professional.

The professional must be providing a health service (for instance a doctor, psychiatrist, or pharmacist), or a specialist sexual assault or family violence service.

The professional must also be under an obligation to keep the information confidential. That obligation can arise in a number of ways, including under relevant laws, or because it is inferred from the nature of the relationship.

Categories of information that can be protected therefore include:

• notes made by a person’s counsellor, social worker, or doctor;
• records relating to the diagnosis or treatment of an illness, disability, or injury; and
• records from specialist services such as women’s shelters or family violence support centres.

When will the court protect the information?

The court may make an order to protect the information where it is likely that, if used in the proceedings, the information:

• would or might cause harm to:
  • the ‘protected confider’ (that is, the person who is receiving the professional service); or
  • a child to whom the proceedings relate; and
• that harm outweighs the benefit of the information being used.

‘Use’ covers a range of activities including:

• production of the information in response to a subpoena;
• the inspection or copying of information that has been produced; and
• the subsequent use of the information as evidence in the proceedings.

‘Harm’ is also defined broadly, and includes:

• physical harm;
• psychological harm or oppression;
• mental distress; and
• financial harm.

In assessing whether to protect the information, the court will consider a range of matters including:

• the importance of the information to the issues in dispute;
• whether there is other non-sensitive information that can be used instead;
• the public interest in keeping the information confidential; and
• whether there are ways to limit the likely harm of the information being used, such as by:
  • only permitting the parties’ legal representatives to view the documents; and
  • not allowing copies of the documents to be made.

As above, in parenting proceedings the best interests of the child are the paramount consideration in the court’s assessment. In determining what is in the best interests of the child, the court will consider a range of additional matters including:

• any history of family violence, abuse, or neglect involving the child or a person caring for the child;
• what would promote the safety of the child and anybody with care of the child;
• any views expressed by the child; and
• the developmental, psychological, emotional, and cultural needs of the child.

What directions can be made to protect the information?

If the court is satisfied that the risk of likely harm outweighs the benefit of the information being used, it may make directions to protect the information. The effect of these directions can include:

• that a person or organisation does not need to comply with a subpoena;
• that a person or organisation only need to comply with part of a subpoena (ie only some of the documents requested under a subpoena need to be produced);
• that documents produced under a subpoena cannot be inspected or copied (or can only be inspected or copied by specified individuals, such as the parties’ legal representatives and the independent children’s lawyer); and
• that documents produced under a subpoena cannot be used as evidence in the proceedings.

Who can apply to protect the information?

An application to protect sensitive information can be made by:

• the ‘protected confider’;
• the ‘confidant’ (that is, the professional service provider who is obliged to keep the information confidential, or the organisation which they are associated with);
• another person who has possession or control over the information;
• a litigation guardian; and
• if the ‘protected confider’ is under 18 years old:
• • a person with, or who proposes to have, parental responsibility for the child;
  • an independent children’s lawyer representing the interests of the child in the proceedings; or
  • a person who has care of the child.

The court can also make an order to protect the information on its own initiative.

How to make an application

An application in respect of a subpoena to produce documents is made by filing a Notice of Objection – Subpoena. Instructions can be found on the website of the Federal Circuit and Family Court of Australia here, and in the fact sheet of the Attorney-General’s Department available here.

Importantly, the subpoena recipient is not required to comply with the subpoena while the court is assessing an application.

How we can help

As serious consequences can occur if a subpoena is not complied with, it is important to take legal advice should you be considering making an application in relation to a ‘protected confidence’ under the recent amendments. If you or your organisation needs help in this area, please contact us.

This article was written by Karen Keogh, Partner, Barney McDonald, Senior Associate, and Sandra Infante, Solicitor.