Domestic violence perpetrators are weaponising subpoenas from family court proceedings to gain access to their victims’ personal information, including counselling notes, medical details and addresses.
In child custody battles, parties can request up to five subpoenas, which are almost automatically issued by the courts. The information can be given to the abuser even if it will not be used in court.
The federal government is considering how to protect people’s confidential information and allow the court to access relevant material when considering child custody cases, as it looks to amend family law to ensure the best interests of the child are prioritised.
Gabrielle Craig of Women’s Legal Services Australia (WLSA) said despite a rule that the material not be used outside proceedings, perpetrators could generally do what they liked, such as stalk a former partner.
Craig said she had seen cases where a father with a history of perpetrating violence has filed a court application with relatively low merit and immediately has the right to issue five subpoenas without leave, meaning it goes via the court but is issued without checks and balances.
“He could automatically get access to somebody’s counselling notes, medical notes, and that obviously includes really personal, private details, but also might have other details like where she’s living, whether she has a new partner,” she said.
“Within that material it might have her address, so he could start stalking her at her address, her place of work, even where she’s attending counselling. It’s also often used to embarrass someone. You might see them posting on Facebook.”
Craig said these details can also be used in court.
“Say there was childhood trauma. Mum might function perfectly fine, but they’ll bring that up, weaponise it, use it to question their parenting.”
Craig emphasised that the subpoena issue was just one component of the changes that were needed in family law. The planned amendments to the Family Law Act also include removing the presumption of equal shared parental responsibility and other measures to improve the safety of separating families.
People have a right to object to a subpoena but Craig said this was a difficult and onerous process, particularly for someone without legal representation. She said the details were buried in “complex and overwhelming” court documents and the court could still override the objection.
A Senate committee inquiry into the proposed changes to family law is due to report on 24 August.
An initial draft of the bill included protections against some personal information being introduced as evidence, but the section was withdrawn “to allow the government to consider complexities raised by stakeholders during consultation”.
Craig said she was supportive of the principles in the draft legislation but said more work was needed to get the balance right, to ensure subpoenas don’t automatically go to the other party and to inform parties about their right to object.
Terese Edwards, chief executive of Single Mothers Australia, said not only could the subpoenas be “weaponised” but they could add to “litigation abuse”, keeping women in expensive court proceedings.
“And women who, post separation, immediately take a huge drop in cash reserves can then be living under the poverty line, and that can also be weaponised against the woman, [portraying them] as not being able to provide for their children,” she said.
It could also deter women from seeking help, she said.
“Leaving in itself is not protection,” she said. “Within that context there are fears about women reaching out regarding their stress, their anxiety or their mental health because that can be subpoenaed.”
Larissa Waters, the Greens’ spokesperson for women, said she supported the department redrafting that section of the Family Law Act, and that the Greens would push to ensure the right balance was struck between protecting vulnerable people and ensuring the court had the necessary information to decide what was in the child’s best interest.
“Attempting to weaponise a person’s confidential records through the family court is an obvious abuse of power and privilege,” she said.
In a hearing during the Senate inquiry last week, Waters asked the Attorney General’s Department about the removal of the provision relating to subpoenas.
Rebecca Mills, the acting assistant secretary of the family law branch, said the department was working through a range of issues in consultation with stakeholders.
“We’re very conscious of the need with this one to balance the different interests,” she said. “So protecting parties from the harm that can be caused by the exposure of their personal records and also ensuring that the courts and opposing parties have all the relevant material available to them.”
