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One of the biggest fears for people going through family court proceedings is that their most private conversations could be used against them.
Therapy sessions. Counselling notes.
Records from a sexual assault service. Until recently, those records were at real risk of being subpoenaed and aired in court.
The Family Law Amendment Act 2024 changed that.
Protected confidences in family law are now a formal part of the system, giving people the right to apply for protection of sensitive records in family court proceedings.
At Unified Lawyers, we've seen firsthand how the threat of disclosure stops people from seeking help.
This article explains how the new rules work and what they mean for you.
What Are Protected Confidences?
Protected confidences is a new concept introduced by the Family Law Amendment Act 2024, which took effect on 10 June 2025.
It creates a specific legal framework for keeping certain sensitive communications out of family law proceedings.
In plain terms, it means that records of certain private communications can be shielded from the other party and from the court, unless a judge specifically decides they should be admitted.
The types of communications covered include counselling and therapy records, sexual assault service communications, and certain medical records relating to treatment for family violence or sexual assault.
Before this reform, there was no dedicated protection for these records in the Family Law Act.
Some state evidence laws offered partial cover, but the family law system had a real gap.
Survivors of family violence who sought therapy often faced the prospect of having their words read back to them in open court by their abuser's legal team.
That prospect alone was enough to stop many people from getting the help they needed.
Why Were Protected Confidences Introduced?
The introduction of protected confidences wasn't a surprise.
It followed years of advocacy from domestic violence organisations, legal aid bodies, and the Australian Law Reform Commission.
The Senate inquiry into the Family Law Amendment Bill raised specific concerns about how therapy records were being weaponised in family court proceedings.
Here's the pattern that kept repeating: one party (usually the victim of family violence) would attend counselling to process their experiences.
The other party's lawyer would then subpoena those counselling records and use them in court to undermine the victim's credibility, question their parenting capacity, or reframe the narrative of abuse.
The therapeutic relationship was being turned into an evidence-gathering exercise.
The reforms addressed this by giving the Federal Circuit and Family Court of Australia the power to issue protection orders over these records.
You can read more about the full suite of family law changes on our Family Law Reform Hub.
How Does the Protection Work in Practice?
The process isn't automatic.
You don't get protection just because the records exist.
You have to apply to the court for a protected confidences order.
That application asks the court to prevent specific records from being disclosed or used in the proceedings.
Who Can Apply?
The person whose records are at risk can apply.
So can their therapist, counsellor, or the service provider who holds the records.
In some cases, a litigation guardian or representative can apply on their behalf.
The key point is that the person seeking protection has to take an active step.
What Does the Court Consider?
The court weighs up several factors when deciding whether to grant a protection order.
These include the nature and context of the communication, the probative value of the evidence (how relevant it actually is to the issues in the case), the likely harm to the person if the records are disclosed, and the interests of justice.
There's a tension built into this framework that's worth understanding.
The court still has a duty to make decisions that are in the best interests of children, and it needs access to relevant evidence to do that.
So the judge has to balance the person's right to privacy against the court's need for information.
The Senate inquiry flagged that this balancing act puts the onus of proof on the person seeking protection.
That means you're the one who has to convince the court that the records should be shielded, not the other way around.
Your ex doesn't have to prove they need the records; you have to prove they shouldn't have them.
What Happens If Protection Is Granted?
If the court grants a protected confidences order, the records can't be used in the proceedings.
They can't be subpoenaed, admitted into evidence, or referred to by the other party. The protection applies to the specific records identified in the order.
If protection is refused, the records may be admitted, but the court can still impose conditions on how they're used.
For example, the judge might restrict who can view the records or require them to be anonymised in certain respects.
Can Your Ex Actually Subpoena Your Counselling Records?
Before the protected confidences regime, the answer was a clear yes.
Subpoenas for therapy records were common in family law proceedings, particularly in cases involving allegations of family violence or mental health concerns.
The process was simple enough: the other party's lawyer would issue a subpoena to the therapist or service provider, and unless the records were covered by a specific privilege, they'd usually be produced.
Now, the answer is more qualified.
Your ex (or their lawyer) can still attempt to subpoena your records.
But if you apply for a protected confidences order before the records are admitted, the court has to decide whether protection should be granted.
The subpoena doesn't automatically succeed.
This is a real shift.
It doesn't create an absolute privilege over therapy records, but it gives you a legal mechanism to fight the disclosure.
And that mechanism didn't exist before June 2025 under the Family Law Act.
Can a Therapist Be Forced to Give Evidence?
This is a question we hear a lot.
The short answer: it depends on whether a protected confidences order is in place.
Without a protection order, a therapist or counsellor can be compelled to produce records and give evidence under subpoena, just like any other witness.
Therapists don't have automatic privilege in family court proceedings, despite what some clients assume.
With a protection order, the therapist's records are shielded and they can't be compelled to give evidence about the protected communications.
The court may still ask the therapist to provide limited information if it determines that specific evidence is necessary for child safety purposes, but this is subject to the balancing exercise described above.
If you're currently seeing a therapist and are worried about your records being used in family court proceedings, getting legal advice early is important.
The earlier you apply for protection, the stronger your position.
Do Protected Confidences Apply to Sexual Assault Counselling?
Yes. Communications with sexual assault services are specifically covered by the protected confidences framework.
This was one of the driving reasons for the reform.
Survivors of sexual assault who sought specialised counselling were particularly vulnerable to having those records used against them in family proceedings.
The protection extends to communications made in the course of receiving support from a sexual assault service, including any records, notes, or reports generated as part of that support.
If you've accessed a sexual assault service and are now involved in family court proceedings, you can apply for a protection order to keep those communications confidential.
Practical Steps to Protect Your Records
If you're in family court proceedings or think they're on the horizon, there are things you can do now to strengthen your position on protected confidences.
Talk to your lawyer early. Don't wait until a subpoena lands on your therapist's desk. Raise the issue of protected confidences with your lawyer at the start of your matter so they can prepare a protection application if needed.
Let your therapist know. Your counsellor or therapist should be aware that you're in family law proceedings. They may need to take steps to separate your therapeutic notes from any court-related communications.
Understand the limits. Protected confidences aren't a blanket shield. If the court finds that specific records are directly relevant to a child safety issue, it may allow limited disclosure. Your lawyer can help you understand the boundaries.
Keep your legal communications separate. What you tell your lawyer is protected by legal professional privilege. What you tell your therapist is potentially protected by a confidences order. Keeping these channels separate and clear helps protect both.
How Unified Lawyers Can Help
Protected confidences are a new and evolving area of family law.
Getting the application right matters.
Our family violence lawyers understand the sensitivity of these matters and the legal technicalities involved.
Whether you need help applying for a protection order, responding to a subpoena for your records, or understanding how the new rules affect your case, we can give you clear, tailored advice.
At Unified Lawyers, privacy and discretion are at the core of how we work.
With offices in Sydney, Brisbane, Gold Coast, and Melbourne, we've helped thousands of clients through family law proceedings involving family violence.
We work alongside counsellors, social workers, and support services to make sure your wellbeing is protected alongside your legal rights.
Get in touch with us today. We offer a free initial consultation and guarantee a response within 30 minutes.
Call us on 1800 431 519 or book a free consultation online.
If you or someone you know is experiencing family violence, you can also contact 1800RESPECT on 1800 737 732.
Frequently Asked Questions
1. Can my ex access my counselling records in family court?
Not automatically. Since June 2025, you can apply for a protected confidences order to prevent your counselling records from being disclosed or used in family court proceedings.
Without that order, your ex may still attempt to subpoena them. Getting legal advice early gives you the best chance of protecting your records.
2. What are protected confidences in family law?
Protected confidences is a new legal framework under the Family Law Amendment Act 2024 that allows parties to apply for court orders shielding sensitive communications from being used in family law proceedings.
It covers therapy and counselling records, sexual assault service communications, and certain medical records.
3. Are medical records confidential in family court proceedings?
Not by default. Medical records can be subpoenaed in family court proceedings.
However, the new protected confidences provisions allow you to apply for protection of medical records that relate to treatment for family violence or sexual assault.
General medical records not connected to these issues may still be subject to subpoena.
4. Can a therapist be forced to give evidence in family court?
Without a protected confidences order in place, yes.
Therapists can be compelled to produce records and give evidence under subpoena.
With a protection order, the therapist's records are shielded and they usually can't be forced to give evidence about those specific communications.
5. How do I stop my ex from subpoenaing my records?
You need to apply to the Federal Circuit and Family Court of Australia for a protected confidences order.
This application asks the court to prevent specific records from being disclosed.
Your lawyer can prepare and file this application on your behalf.
The sooner you act, the better your chances of success.
6. Do protected confidences apply to sexual assault counselling?
Yes.
Communications with sexual assault services are specifically covered by the protected confidences framework.
You can apply for a protection order to keep those records confidential in family court proceedings.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
