Authored by: Hannah Flanderka

In this video, associate Hannah Flanderka talks about what does and what does not stay confidential in a family law matter.

Video transcript

Hi. My name's Hannah Flanderka and I'm a lawyer in the family law team here at Cooper Grace Ward.

Confidentiality in family law cases

When proceedings are on foot in family law matters, clients can naturally become very concerned about the sanctity of their privacy and what will stay confidential. Clients can also sometimes presume that things that they have told, for example, to their treating health practitioners will remain confidential throughout the process. Unfortunately, there is no hard or fast rule in response to that issue. The Family Law Act provides protections for family counselors as well as professionals who a family counselor has referred a party to for medical or other professional consultation. The act provides that records from that family counselor or that that practitioner who's been referred will be rendered inadmissible in court in very limited circumstances.

The other party can subpoena records

However, outside the scope of those limited circumstances, the protections that's normally afforded by therapeutic confidence do not apply in family law litigation. And it is possible for the other party to subpoena those records as part of the proceedings. The only recourse available to the health practitioner or the party whose records have been subpoenaed is to object to the production of the documents to be produced under the subpoena. To do so, you must provide written notice of the objection to those subpoenas and also outline the grounds of your objection for the court to consider and also provide a copy to each party in the proceedings. After considering the written notice, the court may then list your proceedings for a subpoena objection hearing, at which time they will consider having regard to the written objection and any response that you may have filed in support of the subpoena, whether all or part of the subpoena should be struck out.

Common grounds of objecting to a subpoena

The common grounds of objecting to a subpoena include, for example, that the records sought to be produced are irrelevant, too broad, oppressive or subject to legal professional privilege. For example, in the context of health records, if there's never been any evidence before the court about your physical or mental health history, and then your health practitioner is then later subpoenaed, it could be that you seek to object to that subpoena for lack of relevance, and it would be then a matter for the other party to satisfy the court with evidence that those records are relevant to the proceedings. Similarly, it might be that the subpoena broadly seeks the entire production of your medical record with a certain practitioner when it's only ever been very limited issues that have been raised in the context of your health history before the court. And so in those circumstances, you might seek to object to the subpoena on the basis that it's too broad or even perhaps oppressive. Despite this avenue for objecting to subpoenas, there is no guarantee that the court will find in favour of the objection.

Information shared with your health practitioner could be subpoenaed

In addition, your health practitioner will be required to comply with the subpoena regardless of the objection outcome and so the court will then receive access to those documents and be able to review them and so really, this means that the objection process is essentially primarily looking at preventing the other party and their solicitors from accessing those records. For these reasons, it's very important to keep in mind that anything you do share with your health practitioner could be subpoenaed in the future and most importantly, you should ensure that your conduct and anything that you disclose is entirely consistent with how you conduct yourself in the proceedings to prevent any risk that your credibility could be questioned at some point in the proceedings if those records do then come to light. This is particularly important, for example, if your position is that you are seeking an adjustment in your favour in a property settlement matter on the basis that you have very significant health issues and it actually turns out that the subpoenaed records do not support that you have a health issue or that perhaps the health issues aren't as significant as you have led the court to believe.

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