Are counselling records really confidential in family law proceedings?

In March 2026, A Current Affair aired the story ‘They have no loyalty’: Private rape crisis call read out in court.

In it, they revealed that during a recent court case, a survivor’s private crisis call with a national support service was subpoenaed and read out loud in court. The public response was immediate and emotional, and many people were outraged.

Importantly, this media coverage has left Australians asking a confronting question – if you speak to a counsellor, even when they say it’s confidential, is it really private? Where does the law actually stand?

Why confidentiality in counselling matters

Counsellors and therapists in Australia operate according to a strict ethical code of confidentiality. This is hugely important because it’s this confidentiality that makes counselling and crisis support work.

Often, counsellors, therapists and support staff who offer crisis services are there to help people with incredibly challenging situations, such as experiences of domestic or family violence, feelings of fear, shame or confusion and even ongoing concerns about your safety or that of your children. And it’s only because people believe they’re in a safe, confidential space that they feel able to speak freely.

But when confidentiality is uncertain, this can have what’s referred to as a ‘chilling effect’. The chilling effect can stop people from seeking help altogether because they’re afraid that what they share might be shared.

This ethical duty of confidentiality is strong, but it’s not absolute. Counsellors may be required to disclose information in some situations, such as mandatory reporting requirements. However, many people don’t associate disclosure with family law matters. And in family law matters, such as separation, family violence, or other family law disputes, what is shared in a counselling session can have serious consequences, because counselling is often one of the first places people turn when things begin to break down.

Can counselling records be subpoenaed in family law matters?

As we’ve seen in The Current Affair exposé, in some situations, counselling records can be subpoenaed even in family law matters.

A subpoena is simply a formal legal request issued by the court. The subpoena will set out what is required to be provided to the court, typically documents that are relevant to the matter, and the person or organisation that it is addressed to will then be required to provide those items to the court, unless an objection or other privilege applies.

The type of evidence that could be requested in family law matters is hugely varied, but some examples of counselling-type records include:

• Counselling notes
• Therapy records
• Hotline transcripts
• Call recordings
• Medical or psychological reports

Often these records are sought to assist the court to gain some insight into issues that affect the determination of parenting arrangements, the credibility of parties involved in the matter or allegations of family violence. But now, The Current Affair and other media coverage have focused on exactly this process, noting that even though it does provide insight to the court, it can also cause significant distress for the person involved.

What has changed under the Family Law Act reforms

While this issue has recently gained public attention, there have already been changes to how the law treats confidential communications in family law matters. Recent amendments to the Family Law Act 1975 during 2025 have introduced stronger protections for confidential communications in the form of a protected confidences framework.

This framework lets parties ask the court to restrict the disclosure and use of certain confidential communications in child-related family law proceedings. Under the new framework, if requested, the court must apply a test before allowing this material into evidence. They must consider and balance the probative value (whether it adds anything substantive to their understanding of the issues in the case), the availability of other evidence and harm to the confider.

The Family Law Act reforms are designed to:

• Limit unnecessary access to sensitive personal information
• Give courts clearer guidance on when confidential information should be protected
• Better balance the need for evidence with the need to protect vulnerable people
• Ensure that accessing confidential information is genuinely necessary to resolve the case

Does this mean counselling records are protected now?

The Family Law Act amendments have improved protections overall, but they don’t create absolute confidentiality of counselling records in family law matters. The family court can still allow access to counselling records if it believes the information is:

• Relevant to the case, particularly the best interests of the children
• Necessary for a fair and appropriate outcome

The court also has discretion to limit how the information is used or shared. So, it may, for example, restrict who can view the material. It may also only allow access to some parts of the disclosure, but not all, or impose any other conditions around how that information is handled overall. The result is that vulnerable individuals are protected more fully, although not completely, and the court remains able to access the information that it needs.

Domestic violence, coercive control and evidence

The issue becomes even more complex in matters involving domestic violence, coercive control or financial abuse. In these situations, counselling and therapy are often where patterns of behaviour are first spoken about openly. They can include discussions about fear, control, isolation or harm that may be visible in other parts of the evidence.

In family law proceedings, particularly parenting disputes, the court is required to consider the safety and well-being of children. Because of that, information that helps explain those dynamics can become relevant, and in some cases, form part of the evidence before the court.

This creates a difficult tension because the same information that helps explain your experience and situation and has helped you get through some of the most difficult moments of your life may also become something that is taken and examined in a legal setting in the course of assessing what is in the best interests of the children. You may understand the importance of it being evidence while still feeling exposed and vulnerable as well.

This is the reason why these matters must be handled carefully and with a clear understanding of not just the legal outcomes but also the outcomes on the people involved.

What does this mean if you’re going through a separation yourself?

The recent media coverage about the disclosure of confidential information has amplified what were already valid concerns. People are more aware than ever that there is a risk to speaking with a therapist or counsellor, but they may not be equally aware that there are also more protections than ever for those same communications.

So, if you’re navigating a separation or divorce, especially where there are issues of family violence or other abuse, it’s important to understand how confidentiality works in practice and the possible concerns and opportunities in your own matter.

The best thing you can do in this situation is get legal advice from a qualified family lawyer as early as possible. An experienced family lawyer can help you understand the types of counselling records that could be requested and can help you respond to a subpoena if one is issued.

Importantly, they could also take steps to help you protect sensitive information by requesting privacy considerations from the court and help you approach your matter in a way that balances your safety, privacy and legal position. This is vital if your matter involves any sensitive issues, like domestic violence, coercive control or financial abuse.

Every situation is different, and the way these issues are handled can significantly affect your case. Having experienced family law support can make all the difference.

Getting support from AFL

Our team at Australian Family Lawyers are experienced in handling sensitive information but also practical and strategic in managing evidence, subpoenas, and family law matters in general. And though we’re technical experts, we’re also focused on supporting you throughout your entire matter.

Our team understands how sensitive these matters can be. We approach them with care, discretion and a focus on protecting your interests whilst ensuring you understand your legal rights and obligations, as well as the court process itself.

If you need guidance, please reach out to our family law team to talk through your situation and your options.