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RUBY:

From Schwartz Media. I’m Ruby Jones, this is 7am.

In Australia, abortion has been decriminalised since 2023, meaning people around the country can get an abortion without facing legal consequences.

But that hasn’t stopped abortion being weaponised against women in the courtroom.

Writer and producer Madison Griffiths has been covering reproductive rights for a decade … so it came as a shock to her to learn that…in spite of Australia’s relative reproductive freedoms…that abortion records were turning up in custody disputes and even sexual abuse trials.

Today, Madison Griffiths on women’s right to choose and how the law is fighting to keep up with this new frontier of domestic abuse.

It’s Wednesday, June 18.

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RUBY:

So Madison, you've been reporting on reproductive rights for a while now. Could you maybe start by telling me a bit about Louisa and how you came across her story?

MADISON:

Absolutely. So I came across Louisa incidentally. I was conducting research on another story pertaining to women's experiences. And a woman I interviewed for that line of inquiry sent me a separate email. And she was outlining that a friend of hers, who I would later discover was Louisa, had been treated incredibly poorly in the family courts. So in 2021, Louisa was required to enter the family law court in Brisbane in a bid to fight for custody of her then seven year old daughter, um against her ex-husband.

Women are no strangers to unfair administrations in family court processions. But what struck me uniquely about Louise's particular story was that her past abortions were admitted as evidence as part of her subpoenaed medical records. And they were explicitly mentioned in the court processions as well. So, I was very intrigued.

RUBY:

So tell me more about what was said about those past abortions, the way in which they were being used as evidence in this case.

MADISON:

So they were introduced in the court processions by the independent children's lawyer. So not necessarily by her ex-husband's defence counsel, which I thought was particularly interesting. They were mentioned while her ex husband was being cross-examined. In a very elusive way, I guess, to check or to query her ex-husband as to whether or not he was aware that once upon a time in the past she had made these choices.

And there is a particular vein of paranoia when it comes to the family court and who exactly has power. And women, particularly those who raise concerns or allegations of sexual abuse, are scrutinised profusely for doing so, seen often as vindictive or as if they are concocting fictitious harms to gain exclusive custody of their child or children. And given such allegations were introduced in Louise's case, I believe, you know, this is my opinion, that they were mentioned to cast doubt on her honesty.

So I did find that really strange.

RUBY:

That's interesting. Do we know any more about, I suppose the process that allows something like a termination to be used in this context.

MADISON:

So that's where I went to abortion providers and legal experts to find out if the accessing of this information had, I guess, a routine choreography, if that makes sense, if there was a way to access this and how. It is difficult to pinpoint exactly how this information was first accessed. It is possible that documentation alluding or, you know, directly referencing her abortion was incidentally submitted. So sometimes when medical records are subpoenaed more broadly, they aren't necessarily sieved through. I did speak to various doctors who made a concerted effort to omit parts of individuals' medical records that they did not themselves deem relevant, but this is not necessarily common practice.

However, with this particular case, with Louise's case, The court did sanction a psychiatrist to provide an affidavit, which is not uncommon at all. It's often very, very common in family court cases. And I received the transcript of that medical legal report from Louisa. He addressed Luisa's terminations directly with her, and in my opinion this was riddled with judgement. There were unfounded assumptions in his affidavit about how a lot of women apparently experience guilt and depression pertaining to past abortions later in life, regret or, and I quote, He had said to her that some women find themselves wishing to have kept one of the babies they didn't keep. I found this incredibly prejudicial that a psychiatrist was spouting this stuff, which is completely wrong, especially in 2021 when this took place.

RUBY:

But I suppose the subtext is that if you've had an abortion, there is some judgement being cast on whether or not, if you're going through a custody battle, you are now a fit mother.

MADISON:

Absolutely, that is the implication. Whether or not that was intentional, it's too dangerous an implication to play with so recklessly, I believe. It is deeply prejudicial, but it is also factually incorrect. The vast majority of people who terminate pregnancies are also in fact already mothers. And abortion advocates resist the differentiation of abortion havers and child havers per se.

There is nothing incompatible with motherhood and parenthood and terminating a pregnancy. So I did find this particularly frustrating given there have been so many junctures in which this has been challenged and proven incorrect.

RUBY:

After the break - using their abortion history to portray someone as reckless, hypersexual, and crazy.

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RUBY:

Madison, how common is it for abortion records to turn up as evidence in court?

MADISON:

There are no official statistics that I was able to access regarding this. I did speak to a few abortion providers. The impression that I received was it is fairly uncommon for abortion records to turn up in court.

Generally, across the board, you know, not necessarily in family court cases, there are certainly instances in which abortion records are relevant, for sure, particularly in sexual assault cases where they work as proof of a sexual contact having been made. So it's not necessarily that abortion should not be ever mentioned in court or that it's too sensitive or too prejudicial in and of itself.

However after I became aware of Louisa's, uh, incident, I did start asking around to see if an individual's abortion had ever been used against them in, in broader court processions. Um, and that is when I received a message from Olivia. And, Olivia had been encouraged by her legal counsel to introduce her singular abortion as evidence. So proof of having terminated pregnancy at 17 years old. This was introduced during a sexual assault trial. The prosecution encouraged this. Um, Olivia felt. Relatively comfortable with this, if not comforted by this, as it was a tangible material proof of a sexual occurrence that had happened. But, given the nature of how the abortion was introduced alongside her sexual health history or sexual history per se, it was, she believes, used against her to suggest a hypersexualization that was innate in her or embedded in her. She feels as if the abortion was registered in the mind's eye of the jury as mere proof that she is reckless and hypersexual and quote unquote crazy. There is no proof that that is what was. Considered by the jury, but I believe Olivia has every reason to be dubious when it comes to how this was postured in the court.

So whilst it is relatively uncommon. I will be unsurprised to find if it happens a lot more than we anticipate it does.

RUBY:

And can you tell me any more about what doctors have told you about being placed in that position, and the moral and ethical equations they have to make?

MADISON:

Absolutely. Dr. Sue Brumby, she was an abortion provider I spoke to for this, and she really stressed that she finds this a form of emotional domestic abuse. I think any people that work in the Victor. Dubious about how these elements of a woman's private past sexual history can be used against them. I think particularly abortion's complex as well because it has a rich and patriarchal history and it has a really complex relationship with the law. So for it to reappear in this context, feels like a terrible loophole and kind of goes against a lot of advocacy endeavours and medical endeavours to de-stigmatise and make more accessible a procedure that is legal and is incredibly common.

RUBY:

Right but we have recently seen some of that advocacy pay off… this month there were amendments to the Family Law Act, tell us what the changes will bring.

MADISON:

This being introduced in a bid to just ensure that sensitive information such as a woman's past termination history and counselling records, but primarily her counselling record is safeguarded from entering custody battles. So it does say that the protections relate to communications occurring. When a person seeks treatment or support from health services. And the definition here of health is particularly and deliberately broad. So that is psychological and physical and sexual health. If the court believes that such evidence being submitted will. Cause harm or the child involved in the proceedings will find this harmful, documents will then not be admitted in proceedings. If this amendment act had been introduced prior to Louise's custody battle, I personally believe the outcome would have been significantly different.

Louisa lost custody of her child. Louisa was unable to see her child. So for a woman to raise allegations, such as the ones Louisa raised of sexual abuse, commonly the family court will and does, in my opinion, punish this woman for doing so. And in this instance, Louisa has been doggedly punished.

RUBY:

To come back to the issue of her terminations, and I suppose more broadly the issue of terminations being used in court proceedings, I mean, no matter what they are. I mean what does the fact that that is happening in 2025, what does that say to you about the stigma that is still attached to having a termination at all?

MADISON:

I believe it reintroduces a brand new element of weaponization that I think Australia has felt relatively politically immune to. I know in my reporting that Roe v. Wade, the overturning of Roe V. Wade in the States did have a philosophical and political flow on effect. It certainly did raise the question of abortion on home soil in a way that felt more urgent and pressing, but we haven't necessarily been met with the underside of abortion being weaponised in this way. I think when people look at abortion more broadly the issues and the very real issues have to do entirely with access. What is so terrifying about this instance is... There is a 20-year gap between these terminations occurring and then being reintroduced both in Louise's life, but in Louise’s legal processions regarding the custody of her child. So this raises a terrifying precedent when it comes to the choices we make about our bodies and how those choices can, in another context, be used against us.

To completely corrode our ability to move forward with our lives, which is the great beauty and joy of women being afforded the right to choose in the first place. I did find it a deeply upsetting irony that this resurfaced in this way.

RUBY:

Madison, thank you so much for your time.

MADISON:

Thank you so much, Ruby.

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RUBY:

Also in the news today…

Prime Minister Anthony Albanese has welcomed remarks from his British counterpart that the UK is determined to proceed with the AUKUS deal.

Speaking to concerns over US commitment to the AUKUS deal, British Prime Minister Keir Starmer says the UK Labour government held a review of the security arrangement last year, and says there are clear benefits.

The comments come amid the G7 summit in Canada, where a planned meeting between Albanese and US President Donald Trump was cancelled – with the White House stating the president had to return to Washington amid the escalating war in the Middle East.

And

G7 leaders have delivered a statement saying “Israel has the right to defend itself”, calling Iran the quote “principal source of regional instability and terror”

Israel launched a shock attack on Iran on Friday – as Washington and Tehran were in the midst of nuclear negotiations – and has so far killed more than 200 people, mostly civilians.

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