Are Medical and Psychological Reports Always Confidential in the Australian Family Court?
When family law proceedings involve allegations of family violence, parenting capacity, or mental health issues, one of the first questions lawyers hear is:
“Will my medical or counselling records stay confidential?”
The short answer is: not always.
A recent case — Dixon & Dixon [2025] FedCFamC2F 1082 — offers valuable insight into how the Family Court balances confidentiality with the best interests of children.
Case Overview: Dixon & Dixon [2025]
In this parenting dispute, both parents were ordered to undergo a mental health assessment.
The mother issued subpoenas to two government authorities seeking the father’s mental health records, aiming to provide full background to the appointed single expert psychologist.
The father objected, claiming the documents contained “protected confidences” under Part XI, Division 1B of the Family Law Act 1975 (Cth) — meaning private disclosures made in a therapeutic setting that should not be revealed without consent.
He argued that disclosure would cause him psychological distress and harm, relying on sections 102BA and 102BE.
The Court’s Decision
Judge Dunkley accepted that the father’s therapy notes fell within the definition of a “protected confidence”.
However, the Court held that these records were highly probative and central to understanding the father’s mental health — a key factor in deciding what time the children should spend with him.
To protect both privacy and procedural fairness, the Court crafted a balanced order:
Only the lawyers for each party may inspect and photocopy the documents.
The parents themselves cannot view or keep copies.
The materials may be provided only to the single expert psychologist.
The documents must not be further disclosed or distributed.
Each party was ordered to bear their own costs.
Key Takeaways
This decision underscores an important principle:
Protected confidences are not automatically confidential.
The Family Court has discretion under section 102BE to allow limited disclosure where the evidence is crucial to determining a child’s best interests.
In other words, the need for a fair and informed decision can outweigh personal privacy — though the Court will take all reasonable steps to minimise harm, such as restricting access to lawyers and experts only.
The Legal Framework: Section 102BE(4)
When deciding whether to allow inspection or use of confidential material, section 102BE(4) requires the Court to consider:
The evidence itself:
its probative value;
its importance to the proceedings;
whether other evidence is available.
The potential harm:
the likelihood, nature and extent of harm to the person who made the confidential disclosure or to a child involved.
Mitigation options:
how the Court can limit or control that harm.
Prior disclosure:
whether the material has already been shared.
Public interest:
in maintaining confidentiality.
Consent and representation:
whether the confider opposes disclosure;
whether the confider is legally represented.
If the confider is a child:
whether a parent or Independent Children’s Lawyer opposes disclosure.
This framework ensures the Court’s discretion is exercised transparently, balancing fairness, privacy, and the paramount consideration — the child’s best interests.
Practical Insight for Practitioners
For family lawyers and litigants alike, this case reinforces that:
Medical or psychological records may be produced under subpoena if they are materially relevant;
Objections based on confidentiality should be supported by evidence, such as an affidavit addressing likely harm;
Courts may restrict access instead of excluding the evidence entirely;
Counsel should prepare clients for the possibility that their therapy notes may be inspected — but not necessarily by the other party personally.
Final Reflection
The Family Court is not blind to privacy — it recognises the sensitivity of mental health disclosures.
But when the welfare of a child is at stake, confidentiality yields to transparency — carefully, and only to the extent necessary.
