Balancing Security and Justice, Protected Confidence Orders in Australian Family Law:
In as part of the recent amendments made to the Family Law Act 1975 (Cth) which implemented on 19 June 2025, it was recognised that there is a need to safeguard sensitive information from being disclosed or used as evidence in family law proceedings that may cause harm to a party or the child/children. The new amendments now give the Court the power to order that some evidence is not permitted in proceedings, if the evidence contains ‘protected confidences’.
There are two competing interests in relation to the disclosure of sensitive information in family law proceedings. The first being that it can often have harmful effects and potentially deter individuals who do require therapeutic/ medical assistance from either seeking the assistance or engaging openly during their sessions. To the contrary it can also be a crucial part in assisting the Court in determining the issues in dispute.
It has been questioned whether these changes strike the right balance between therapeutic privacy and procedural fairness.
Understanding Protected Confidence
The legal framework for protected confidences was introduced by the 2025 reforms to the Family Law Act 1975 (Cth), now found in sections 102BA to 102BF. These provisions allow the Court to prevent certain sensitive information from being disclosed, inspected, or used as evidence in family law proceedings.
The term “protected confidence” is defined in section 102BA 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).”
Further, the term “professional service” is defined by section 102BB and relates to health services, a specialist service relating to family violence or sexual assault, or services provided by a pharmacist.
Examples of these documents include:
- notes made the parties counsellor. psychologist or psychiatrist;
- records relating to a diagnosis or treatment of an injury;
- Records of specialist services such as women’s shelters, or family and domestic violence services; and/or
- Medical records relating to admissions to the hospital and mental health facilities.
Section 102BC permits the court to make orders restricting the use of such material in evidence, while section 102BD extends those powers to situations involving subpoenas. The ‘balancing test’ for this practice is evident in section 102BE, which requires the court to weigh the likely harm of disclosing the information against its probative value. However, pursuant to section 102BF the court cannot override the evidence being shared if the adult whom the information relates to provides written consent.
What, when and how can Protected Confidence be asserted?
The following individuals can make an application for a protected confidence order:
- The party whom the documents relate to (the protected confider);
- The confident, this is the service provider/ professional who is obligated to keep such information confidential;
- Any other person who has control or possession of the information;
- A litigation guardian; and
- For those who are under 18, a person who has care of the children, a person who proposes to have parental responsibility for the child, an independent children lawyer
One of the above parties can raise a protected confidence claim at any stage during family law proceedings. For example, this may occur at the time of when the Initiating Application or a Response is filed, or later during the proceedings by filing an Application in a Proceeding.
In cases where subpoenaed documents have already been produced, the person must first request to inspect the material, then lodge an objection within a certain time frame. These steps, if used inappropriately or strategically to frustrate proceedings can raise significant concerns about procedural abuse. When misused, the process may hinder the overall efficiency of the matter, prolong resolution, and case legal costs to escalate for all parties involved.
When would the Court Protect the information?
A 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 or the child/children who the proceedings relate to and whether the harm outweighs the benefit of the information being used.
The term “Harm” also defined broadly, and includes:
- physical harm;
- psychological harm or oppression;
- mental distress; and
- financial harm.
The Court will consider a range of factors when deciding whether or not to protect such information, 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.
In parenting cases, the best interests of the child remains the Court’s paramount consideration when assessing the above factors.
Conclusion
The introduction of protected confidences into the Act reflects a significant shift towards prioritising the safety, dignity, and privacy of vulnerable parties in legal proceedings. However, as these provisions become more widely used, Courts must remain vigilant to ensure they are not misapplied in ways that compromise procedural fairness or delay the timely resolution of family law matters.
How Ramsden Family Law Can Help You
At Ramsden Family Law, we understand the complexities and challenges associated with any family law matter. Our team of experienced professionals is here to guide you through every step of the process, ensuring that your rights are protected, and your case is handled with the utmost care and diligence. We recognise the emotional and personal challenges you may face in these situations. Our approach is rooted in empathy, ensuring you receive the support you need during difficult times. Our primary goal is to safeguard your family’s well-being and best interests. We work diligently to achieve outcomes that prioritise your family’s future.
The content of this article is intended to provide general guidance to the subject matter and must not be relied on as legal advice. Specific advice should be sought about your circumstances.
