Image credit: AAP Image / Abe Maddison
A recent change to the Family Law Act may still fall short of protecting women from being cross-examined about their sexual health history.
In the mid 1990s, Louisa* – barely an adult – made two decisions to spare herself a lifetime of pain. On two separate occasions, she slipped quietly through the gates of a concealed clinic, careful to avoid the protesters gathered at the front. Louisa had weighed up her options and knew that acquiring abortion care was her best bet. She wasn’t yet financially or emotionally fit to become a mother. Nor could she bear to be tethered to the man who had got her pregnant.
Almost two decades later, in 2021, Louisa arrived at the Family Law Court in Brisbane’s central business district. She was ready, she thought, to fight for the custody of her then seven-year-old daughter. The last thing she expected was for those choices in her early 20s to be raised in the hearings. On the sixth day, the independent children’s lawyer asked Louisa’s ex-husband if he was aware that, in a previous relationship, she had terminated two pregnancies.
“The slant of it was, I had been dishonest by not having disclosed my abortions,” Louisa tells me. “The tone was judgemental.” How does a woman’s history of abortion become probative in a custody battle? Jason Chin, senior law lecturer at the Australian National University, described such use as “horrific”. “As a preliminary matter, the evidence has to be relevant,” he says. “If it’s not, it cannot be admitted to court.” He argues that the disclosure’s admittance, in and of itself, appears problematic.
For medical records to be subpoenaed, legal counsel must first apply to the Family Court for access. If the records are deemed to contain necessary information pertaining to the case, health practitioners can still refuse to supply them, or at least omit certain sections. However, the process of refusing access is onerous and complex, and requires a degree of legal knowledge. If medical files are supplied, the court must then decide whether they are probative or merely prejudicial.
Dr Sue Brumby, one of Australia’s pioneering abortion practitioners, says admittance of abortion records is the “psychological aspect of domestic violence”. She was once subpoenaed and recalls her sense of powerlessness upon being told by the clinic’s legal counsel to hand over her patient’s information. “I at least let my patient know what had happened,” she says.
Greg Johnson, managing director of abortion and contraception service MSI Australia, says it receives “perhaps one or two” subpoenas a year. “We know that coercion and disputes with partners can lead to attempts to use a past history of abortion to undermine a woman’s rights or standing in disputes,” he says.
Even abortion counsellors, who merely provide advice on how to handle an unwanted pregnancy, have encountered requests from government agencies seeking access to their clients’ information. Katrice Bulgarelli is one such practitioner who has received informal requests from government officials, such as child safety officers, for information on whether or not a particular patient decided to proceed with an abortion. In this context, Katrice says, “I cannot think of an appropriate time for an individual’s medical decisions to be admitted.” Quite often, she says, the requests lacked the necessary paperwork and she has never been required to oblige them.
“We know that coercion and disputes with partners can lead to attempts to use a past history of abortion to undermine a woman’s rights or standing in disputes.”
While the medical records of both Louisa and her young daughter were subpoenaed, her ex-husband’s were not. Additionally, a court-sanctioned psychiatrist was engaged to provide an affidavit in 2021, attesting to Louisa’s character. Louisa says he questioned her at length about her abortion history, asking if she believed that she had “made the right choice”. Taken aback, Louisa recalls challenging his line of questioning, to which he insisted that “from a medical history point of view, pregnancies and their impact on … a woman’s physical and mental health and the decision to have a termination can become very complicated, with physical complications of various sorts”. [FALSE, Editor]
Louisa was particularly horrified at the psychiatrist’s assertion that when some people who have terminated pregnancies reach middle age, they “start having guilt and depression” over their decision.
This “assumption” that an abortion negatively impacts a woman’s life has long been contested. Published in 2020, The Turnaway Study – an American investigation into the effects of unintended pregnancies, led by Diana Greene Foster – found no evidence that abortion is inherently damaging to women. Rather, Greene discovered that women who had terminated pregnancies appeared better off in many respects than those who were denied – exhibiting better physical, professional, emotional and financial outcomes.
There are, however, instances in which an abortion is considered relevant to court proceedings – in criminal trials. Proof of Olivia’s* procedure was admitted as evidence during an arduous prosecution for alleged sexual assault in which she was the complainant. Olivia testified that she was assaulted throughout her teenage years by a trusted member of her family, and she fell pregnant. Lawyers on both sides of the case sieved through diary entries she’d written throughout her adolescence, documenting abuse and her abortion.
Asked how the defence reacted to the evidence, she is adamant that it only confirmed their depiction of her as “immoral”, “crazy” and “promiscuous”. She says her termination, and subsequent assaults, were presented to the jury as characterising overtly sexual, risky behaviour: proof of her personal failings. “It was incredibly dehumanising,” she says. “I felt gaslit, doubted and blamed.” The defendant was acquitted.
Now a survivor advocate who facilitates regular peer support groups, Olivia recalls the trauma of having her sexuality interrogated on the stand. “Your perpetrator will haunt you,” she tells The Saturday Paper. “But the people who defend him will haunt you in an entirely different way.”
As of June 10, amendments to the Family Law Act 1975 apply that should help to ensure that sensitive information, such as a woman’s termination history and counselling records, is withheld from custody battles. The changed text states that “the protections relate to communications occurring where a person seeks treatment or support from health services” – including psychological treatment from specialist family violence and sexual violence services.
Under the amendments, if the court believes access to such evidence will likely cause harm to a protected confider, or to a child involved in the proceedings, such documents will not be admitted.
It’s a welcome change, says Meaghan Bradshaw, the chair of the WLSA (Women’s Legal Services Australia) family law and domestic and family violence committee, but she does not consider it a “cure” for the issue of subpoena misuse in the Family Court.
“When the bill was introduced, WLSA gave evidence at the hearings before the Senate committee. We were asking for [the law] to be amended so that the person who wanted to issue the subpoena needed to be granted permission to do so beforehand through a judicial officer, by explaining how those records are relevant. Once the records are out, the damage has already been done. Our position was not adopted.”
In early 2014, after the birth of her daughter, Louisa completed a psychosocial assessment questionnaire supplied by her hospital. She says she was eager to take “cautionary measures” when it came to “testing for postnatal depression”, on the basis that good mental health was crucial to helping her be a good parent. She says this questionnaire was “weaponised” against her in the Family Court hearing, where her account of her abuse as a child was presented as her “working through an unwanted pregnancy”.
Louisa vehemently denies this characterisation. “The psychosocial assessment was not ever brought before me in the trial, so I have not ever had the opportunity to contest it or see the material,” she tells The Saturday Paper. “It makes me sad and panicked that my daughter will see that judgement one day, because it’s not true. She was, and always has been, incredibly wanted.”
Bradshaw stresses that such use of counselling records in Family Court proceedings is “damaging” to any therapeutic relationship. “It is so important for individuals to be able to maintain a confidential relationship with their counsellor. If the issue is mental health, and the allegation is that the individual’s mental health is able to impact on their ability to parent … isn’t it important that the person can have a relationship with their counsellor, so that they are able to stay mentally well?”
For Louisa, the heartache she endeavoured to avoid decades earlier has resurfaced. In the wrong hands, a woman’s right to choose can still determine her fate.
This article was first published in the print edition of The Saturday Paper on 14 June 2025 as “Weaponising abortions”. *Names have been changed.
SOURCE: The Saturday Paper, by Madison Griffiths, 14-20 June 2025 + PHOTO: AAP Image / Abe Maddison