The Family Law Amendment Act 2024 (Cth) makes a number of significant amendments to the Family Law Act 1975 (Cth).

One of the significant amendments is to enable a Court to excuse a witness from producing documents or giving evidence about a ‘protected confidence’ during family law proceedings.

These amendments will commence on 10 June 2025.

What is a ‘protected confidence’?

A ‘protected confidence’ includes a communication made between a child and a professional in the course of a professional relationship, and in circumstances where the professional is under an obligation not to disclose communications made to them by the child.[1]

Which professional relationships are covered?

Professionals that provide health services will be covered by these amendments. These include professionals that:

• assess, maintain or improve the child’s physical or psychological health
• manage the child’s physical or psychological health
• diagnose the child’s physical or psychological illness, disability or injury
• treat the child’s physical or psychological illness, disability or injury or suspected illness, disability or injury
• record the child’s physical or psychological health for purpose of assessing, maintaining, improving or managing their health.

Professionals that provide specialist services in relation to sexual assault or family violence will also be covered by these amendments.[2]

What information and documents are covered?

Any information or document that records, discloses or relates to a ‘protected confidence’ is covered by these amendments. [3]

What specific orders can the Court make?

If a person or organisation receives a subpoena to produce documents in family law proceedings, the Court may direct that any document(s) or a part of any document not be produced to the Court or not be inspected or not copied by the parties in the family law proceedings if is records, discloses or relates to a ‘protected confidence.’ [4]

Similarly, if a person receives a subpoena to give evidence in family law proceedings, the Court may direct that evidence not be adduced in the proceeding if it would disclose a protected confidence or it relates to protected confidence.[5]

What are the benefits of protecting ‘protected confidences’?

It is extremely important to protect ‘protected confidences’ made by children for the following reasons:

• It helps ensure that we act in the best interests of the child.
• It avoids causing further trauma and distress to the child.
• It avoids placing a child at further risk of harm.
• It prevents perpetrators of family violence from using family law proceedings to further abuse and harm the child.
• It prevents adults from exerting power and control over children and using family law proceedings to access the child’s sensitive counselling and health records.
• It preserves and upholds children’s rights, including their right to privacy.
• It may help children feel more comfortable seeking and receiving assistance knowing that there are specific protections in place.

What is the test?

The Court may excuse a witness from producing documents or giving evidence about a ‘protected confidence’ during family law proceedings if:

• it is likely that a child would be harmed or could be harmed if the evidence were adduced or the document produced, inspected or copied; and
• the nature and extent of the harm outweighs the desirability of adducing the evidence or producing, inspecting or copying the document or part of the document.[6]

In this context, harm includes physical harm, psychological harm and mental distress.

It includes harm that may be caused directly or indirectly by the disclosure of the ‘protected confidence.’

What is the process?

The following people may make an application to the Court to protect ‘protected confidences’ during family law proceedings:

• the person or organisation who is in possession or has control of the document or recording relating to the protected confidence
• a person who has parental responsibility for the child
• an independent children’s lawyer who represents the interests of the child in the family law proceeding
• a person who has care of the child
• a person who proposes to have parental responsibility for the child.[7]

Whilst the Court is considering the application, the person or organisation is not required to comply with the subpoena.[8]

In order to assist the Court to determine the application, the Court may order that a document or part of the document be produced to the court for inspection.[9]

When considering the application, the Court must have regard to the best interests of the child as the paramount consideration.[10] In determining what is in the best interests of the child, the Court will consider the following factors:

• What would promote the safety of the child including safety from being subjected to, or exposed to, family violence, abuse, neglect or other harm
• What would promote the safety of each person who has care of the child
• Any history of family violence, abuse or neglect involving the child or a person caring for the child
• Any family violence intervention order that applies or has applied to the child or a member of the child’s family
• Any views expressed by the child
• The developmental, psychological, emotional and cultural needs of the child
• The capacity of each person who has or is proposed to have parental responsibility for the child to provide for the child’s developmental, psychological, emotional and cultural needs
• The benefit to the child of being able to have a relationship with their parents, and other people who are significant to them, where it is safe to do so.[11]

If the child is an Aboriginal or Torres Strait Islander child, the Court must also consider the child’s right to enjoy their Aboriginal or Torres Strait Islander culture, by having the support, opportunity and encouragement necessary to:

• connect with, and maintain connection with, members of their family and with their community, culture, country and language
• explore the full extent of that culture, consistent with the child’s age and developmental level and the child’s views
• develop a positive appreciation of that culture.[12]

In deciding the application, the Court must also consider the following factors:

• The probative value of the evidence or document and its importance in the proceedings
• The availability of other evidence or documents
• The likely effect, including the likelihood of harm, and the nature and extent of the harm to the child if the evidence is adduced or document is produced
• The means available to the court to limit the harm or extent of the harm likely to be caused if the evidence if adduced or document is produced
• Whether the substance of the evidence has already been disclosed by the child or any other person
• The public interest in preserving the confidentiality of protected confidences
• Whether the child opposes the disclosure of the protected confidence
• Whether a lawyer is representing the child in relation to the proceedings
• Whether a person who has parental responsibility for the child opposes the disclosure of the protected confidence
• Whether the independent children’s lawyer opposes the disclosure of the protected confidence.[13]

If you have received a subpoena to produce documents or give evidence in family law proceedings, and you believe that you have been asked to provide evidence about ‘protected confidences’, please contact Safety Quality & Care Legal Services to obtain specific legal advice about your individual circumstances.

 

 

Elena Totino

Founder, Director & Principal Lawyer

Safety Quality & Care Legal Services

 

May 2025

 

[1] Family Law Act 1975 (Cth), s. 102BA

[2] Family Law Act 1975 (Cth). S. 102BB

[3] Family Law Act 1975 (Cth), s. 102BD(1))

[4] Family Law Act 1975 (Cth), s. 102BD(1))

[5] Family Law Act 1975 (Cth), s. 102BC(1)

[6] Family Law Act 1975 (Cth), s. 102BE(2)

[7] Family Law Act 1975 (Cth), ss. 102BC(2) & 102BD(3)

[8] Family Law Act 1975 (Cth), s. 102BD(4)

[9] Family Law Act 1975 (Cth), s. 102BD(5)

[10] Family Law Act 1975 (Cth), s. 102BE(3)

[11] Family Law Act 1975 (Cth), s. 60CC(2) & (2A)

[12] Family Law Act 1975 (Cth), s. 60CC(3)(a)

[13] Family Law Act 1975 (Cth), s. 102BE