Sensitive Material in Family Law Proceedings

In Australia, family law proceedings often involve the disclosure of sensitive material, as the issues under discussion include personal and private aspects of family life. When dealing with sensitive material in parenting matters and property settlement proceedings, the courts must balance the need for transparency and the need to protect the privacy and welfare of vulnerable individuals, particularly children. This article looks at the nature of sensitive material in family law proceedings, and the legal and procedural rules that apply to the introduction of such information.

Open justice

As a general rule, court proceedings and judgments in Australia are accessible to the public, as part of a policy of “open justice” that is intended to keep courts accountable for their decisions. This intent is reflected in section 97 of the Family Law Act 1975, which states that all hearings should be heard in the open unless the court decides to the contrary. However, when it comes to family law proceedings, which often involve children, the law attempts to balance the need for open justice with the right to privacy of individuals. For instance, it is an offence under the Act to identify (or publish photos) of individuals involved in family law proceedings, with very few exceptions.

The concept of open justice can be particularly intimidating given that parties in a family law proceeding are obligated under Rule 6.05 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 to provide full and frank disclosure. This means that parties are under legal compulsion to disclose information that they would otherwise have a strong interest in keeping private or confidential. Although the courts will compel disclosure of information in the interests of justice, the law does try to protect this information from misuse. For instance, the Harman Undertaking is an Australian legal principle that requires parties in a legal proceeding to only use information provided during the proceeding for its intended purpose. This principle reflects the fact that it would be unfair to compel someone to produce sensitive material for litigation and then use it against them in some other context. For instance, it is a violation of the Harman Undertaking to use documents from one proceeding in another case involving the same party, or to give documents to the media, or use documents to gain a business advantage.

Sensitive material

In a proceeding before the Federal Circuit and Family Court of Australia, sensitive material refers to any evidence, information or documentation that, if mishandled, could cause significant personal harm to the parties involved in the case. Sensitive material would include:

· child focused information, such as family reports, psychologist or family consultant recordings of interviews with the children and allegations of neglect and abuse

· personal and medical records, such as health records (including mental health and history of substance abuse), diaries and journals

· domestic violence records such as applications for DVOs, police and medical records of violent incidents

· financial information, including details of income, property and liabilities, financial arrangements between the parties and sensitive business information, and

· third-party information, such as witness statements from professionals, friends and family members, and communications with third parties including text messages and emails.

Health records

Clients in family law matters often assume that the duty of disclosure does not extend to confidential health records. It can therefore come as a shock to learn that there is no guarantee of confidentiality, even for information that would normally be afforded doctor-patient confidentiality. This means that therapeutic records can be subpoenaed and it is up to the health practitioner to object to the subpoena if they do not wish to reveal patient information to the court.

Grounds for objecting to a subpoena include that the material sought is too broad, irrelevant, oppressive or subject to legal privilege. For example, a health practitioner can object to a lack of relevance if health records are subpoenaed, but there is no evidence before the court about the party’s physical or mental health. In that case, it would be up to the other party to prove the relevance of the health record to the proceedings. In the same way, a subpoena can be found too broad if it seeks an entire medical record when only a specific medical issue has been raised during the proceeding.

Protecting sensitive material

Australian courts adopt a range of different approaches to handling sensitive material in family law proceedings. Firstly, the courts assess the admissibility of sensitive material depending on their probative value, availability of alternative evidence and potential harm or prejudice caused by its disclosure. In some cases, the courts will order that a hearing be conducted in a closed court to ensure the confidentiality of sensitive material, particularly when there are allegations of domestic violence or abuse. The courts also frequently redact sensitive portions of documents or issue protective orders to prevent the misuse of the information. For example, in a property settlement matter, the courts may redact confidential business information from financial documents if it is unrelated to the dispute. Independent experts such as family consultants also have a part to play in sanitising sensitive material from their reports to provide the court with necessary insight while minimising the potential for harm.

Contact our family law solicitors on 1300 636 846 for advice about the use and confidentiality of sensitive material in family law proceedings.