From 10 June 2025, you can ask the Court to make an order to protect your sensitive information from being used in family law proceedings.
The type of sensitive information that can be protected is confidential information in the context of support provided to you, or to a child, by a professional. The professional must be providing a:
- Health service;
- Specialist sexual assault service; or
- Specialist family violence service
The court can only make an order to protect information you have told the professional, or that the professional holds about you, or a child, if the likely harm from the information being disclosed or used in the proceedings, outweighs the benefit to the court of being able to use the information.
In the Family Law Act, this concept is called a protected confidence. The person who is providing the professional service (like a doctor or counsellor) is the confidant, and the person who the sensitive and confidential information belongs to, is the protected confider.
If an order is made to protect your sensitive information, or a child’s, you do not have to provide it to any other party in your case, even if they ask for it. Other parties to your case also cannot ask the court to issue a subpoena to access the information from the professional or service that holds it.
The Attorney-General's Department have published a fact sheet which summarises this new area of family law, see: Family law changes from June 2025: Protecting sensitive information | Attorney-General's Department.
What kind of sensitive information can be protected?
The types of sensitive information that can be protected include confidential communications made to the professional who is providing you or a child with a health service, sexual assault service or family violence service. This includes information relating to:
- assessing or maintaining health
- diagnosing or treating an illness, disability or injury (either physical or psychological)
- confidential counselling
- health records, prescriptions or provision of medication
Who can apply?
You can apply to the court to protect your own sensitive information. There are also other people who can ask the court to protect sensitive information, including:
- the confidant, being the professional who must keep the information confidential (like a doctor, specialist counsellor, or pharmacist);
- another person who has a copy of the information, or access to it
- a litigation guardian
- if the person who shared the information is a child under 18:
- an Independent Children’s Lawyer representing the child’s interests in the family law proceedings, or
- someone with parental responsibility for the child
The court can also decide to protect the information on its own initiative.
What kind of protection can you ask the court to give sensitive information?
The court can make different types of orders to protect sensitive information. These include:
- an order that sensitive information not be disclosed to another party, for example so that you do not have to provide a copy of a document to them as part of documents you would usually share in court proceedings
- an order that another party cannot subpoena your sensitive information from the professional or service that holds it
- an order that sensitive information not by inspected or copied, for example if your records have been subpoenaed and a copy is held by the court, that the other party cannot look at them, or if they do, they cannot take a photocopy or electronic copy of the information
- an order that sensitive information cannot be used as evidence in a court hearing.
You should seek legal advice about the type of order that is appropriate for your circumstances.
Does sensitive information have to be shared if you are negotiating before you file?
In family law proceedings, you need to try to resolve your case before it gets to court unless an exemption applies, for example if it is not safe to try family dispute resolution, or the situation is urgent.
If you are trying to agree before court (these steps are called pre-action procedures), you do not have to share your sensitive information if you would later ask the court for an order to protect it because sharing it is likely to cause harm. For information on pre-action procedures in parenting cases, see Before you file – pre-action procedure for parenting cases (prescribed brochure)
How do you apply?
You can apply for an order to protect your sensitive information in a number of ways:
- If you start proceedings, or are responding to proceedings started by someone else, you can ask the court for an order to protect sensitive information when filing an Initiating Application (Family Law) or a Response to Initiating Application (Family Law)
- During proceedings, you can ask the court for an order to protect sensitive information by filing an Application in a Proceeding
- If another party has issued a Subpoena to access sensitive information (such as your health records or a child’s health records), you can object to the subpoena by filing a Notice of Objection.
- If you are not sure what information the professional or service holds about you or a child, and the documents have been provided to the court in response to a subpoena, you can request to inspect them before deciding whether to object. You must do this in the timeframe included on the Subpoena.
The court can only make an order to protect the sensitive information if you can show that it is likely to cause harm, and that harm would outweigh the benefit to the court of the information being used in the proceedings. You must explain why you think that is the case in the Affidavit filed with your application, or if objecting to a subpoena, in the Notice of Objection.
How does the court decide whether sensitive information can be protected?
The Family Law Act sets out considerations for when the court can make an order to protect sensitive information. The court can make an order when:
- It is likely that harm might be caused to you, or a child involved in the proceedings, if the information was produced, copied or used in court; and
- The harm outweighs the benefit of using the information in the court proceedings.
Harm includes:
- Physical harm
- Psychological harm
- Mental distress
- A negative impact on your capacity to care for a child
- Financial harm
The court must weigh up the following matters:
- Whether the sensitive information is needed as evidence, or whether other information is available about the same issue or topic
- How important the sensitive information is to the proceedings, and the issues in dispute
- The likely effect of the information being produced, copied or used, on the protected confider (you or a child)
- Whether there is any way the court can limit the likely harm, or the extent of the harm, if the information is produced, copied or used
- Whether the substance of the sensitive information has already been disclosed or shared in the proceedings
- The public interest in keeping sensitive information confidential
- Whether the protected confider opposes disclosure of the sensitive information, or does not wish for it to be copied or used in the proceedings, or if they are a child, whether a parent or carer or the Independent Children’s Lawyer opposes disclosure of the sensitive information
- Whether the protected confider (you or a child) is represented by a lawyer
If you consent to your sensitive information being used in the proceedings, the court cannot make an order to protect it. This type of consent must be provided in writing, and must be witnessed by an independent adult.
Legal advice
If you have any legal questions about protecting your sensitive information, you should get legal advice. You can get legal advice from a:
- legal aid office
- community legal centre, or
- private law firm.
Court staff can help you with questions about court forms and the court process, but cannot give you legal advice.
