By Shannon Jenkin, Lawyer and Carly Mirza-Price, Partner
In family law proceedings, Subpoenas are a powerful tool. They allow a party obtain documents from third parties, such as schools, psychologists, police, hospitals and medical practitioners, without requiring the consent of the other party where the documents sought are relevant to the issues in the case. When used appropriately, Subpoenas can assist the Courts (and parties) to make informed decisions that promote the safety and wellbeing of the children subject to the proceedings.
Following recent amendments to the Family Law Act 1975 (Cth) (the Act), from 10 June 2025, the Court has strengthened its ability to safeguard sensitive information from being disclosed or relied upon in family law proceedings were doing so may cause harm to a party or a child.
Under the new provisions, the Court is empowered by Section 102BD to make an Order that some evidence may not be permitted in the proceedings if a document, or part of a document would disclose a “protected confidence”.
Section 102BA of the Act defines a “protected confidence” 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, or in relation to, the protect confider (whether the obligation is express or inferred from the nature of the relationship. In other words, this can include any communications or notes taken by a psychologist or therapist during any sessions you or your child may have with them.
Pursuant to Section 102BD, the Court may make such a direction either on its own initiative or upon an application being made to the Court by the confidant, the person in possession of the document, or by a litigation guardian (who is conducting a litigant’s case if the litigant is unable to do so).
The type of sensitive information that can be protected under this Section includes confidential information which has been provided to a professional by you or a child. For example, information relating to assessing or maintaining health, diagnosis or treatment of an illness, disability or injury, confidential counselling or health records and prescriptions.
To safeguard this sensitive information, the Court may make a range of Orders, including Orders:
Whilst the Court can make additional orders protecting the privacy of your sensitive information, there is a blanket rule contained in the Act that prevents parties involved in family law matters from disseminating any information (of any kind) about the proceedings. Section 114Q makes it an offence to communicate to the public, anything that identifies a party, a witness, or a person who is related to or associated with a party to the proceedings. This includes identifying factors, including details of a person’s employment, a location where the person works or resides, a picture or even physical description of the person. There are serious consequences associated with a breach of this section, including imprisonment for up to one year.
Our team is well placed to assist with any inquiries you have about the protection of your personal information in a family law dispute. If you would like further information or have any queries regarding other matters, please do not hesitate to contact our team on +61 2 8289 5800.
If you would like further information or have any queries regarding other matters, please do not hesitate to contact:
