Counsellors, Court and Confidentiality
PRESENTER
Amy Campbell
• 10 years Specialist Family Law and Child
Protection Experience
• Accredited Family Law Specialist
• Senior Associate at Michael Lynch Family
Lawyers
Michael Lynch Family Lawyers
- Who we are?
• Specialist Family Lawyers
• Established 18 years
• 6 Accredited Specialist Lawyers
- over 60 years combined
professional experience
• Advice, Negotiation,
Mediation, Court Representation
Michael Lynch Family Lawyers
- What we do?
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Fixed cost initial interview ($330.00)
Upfront cost advice
FREE book (over 100,000 copies)
FREE fortnightly e-Newsletter (over 5000
readers)
• Presenting over 50 Seminars a year
• Regular articles and publications
Overview
1. PRINCIPLES OF THE FAMILY LAW
ACT - PARENTING
2. RESOLUTION PROCESS
3. DOCUMENTING AGREEMENTS
4. THE COURT PROCESS
5. HOW DO YOU FIT IN?
How do you fit in?
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Advice obligations
Notification obligations
Counselling
Family Dispute Resolution
Confidentiality and Admissibility
Subpoenas
Affidavits
Principles
• Child’s best interests are paramount
• Usually both parents should have high level of
meaningful involvement
• Parents should try to agree
Two Main Issues
1. Parental Responsibility
2. Living Arrangements
Parental Responsibility
• Day-to-day issues
• Major long-term issues
• Equal shared parental responsibility
SHARED PARENTING –
AN OVERVIEW
(Presumption)
Shared parental
responsibility
Exception:
Family Violence
Equal Time
Significant and
Substantial time
• Presumption can be rebutted
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Best Interests S 60 CC
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Reasonably practicable
‘Best Interests’ – S 60CC
Primary Considerations:
(a) Benefit to child of having a meaningful
relationship with both parents.
(b) Need to protect the child from physical or
psychological harm and from being exposed to,
abuse, neglect or family violence.
13 Additional Considerations: e.g.:
- Child wishes
- Practical difficulties
- Parents capacity….etc.
Resolution Process
• Direct Negotiation
• Solicitors Negotiation
• Family Dispute Resolution
• Court Proceedings
Parenting Agreements
• Informal
• Parenting Plan
• Consent Orders
Parenting Plans
• must be in writing, signed and dated by parents
and made free from duress
• not legally binding or enforceable
• Court must have regard to it
Court Proceedings
• Application/Response
• First Hearing
• Family Report
• Independent Children’s Lawyers
• Interim Hearing
• Trial
Do you have to tell a client what
the Family Law Act says?
• not unless you are an “advisor”
• “advisors” = lawyers, “family counsellor”, “family
dispute resolution practitioner” or family
consultant.
• obligations regarding child's best interests
• obligations regarding parenting plans
Notification obligations:
• if necessary to comply with a law of the
Commonwealth, a State or Territory (10D(2) and
10H(2)).
• if child has been abused or is at risk of abuse
(67ZA)
What is “abuse”?
a) an assault, including sexual assault of the child
b) involving child in sexual activity – used directly
or indirectly as a sexual object
c) serious psychological harm, including harm
from being subjected to or exposed to family
violence
d) serious neglect
Confidentiality
Starting point is non-confidentiality:
• everything can be disclosed
• everything can be subpoenaed
• everything is admissable
e.g. statements to GP’s, psychologists, therapists
– even if participants treated them as confidential.
Why? So courts can learn the truth.
Communications made during
“family counselling” and
“family dispute resolution”
What is “family counselling”?
• Process in which family counsellor helps parties
or children with issues relating to marriage,
separation, divorce (section 10B FLA)
• Family counsellor must be authorised (10C FLA)
– i.e. a person authorised to act on behalf of an
organisation designated by the minister.
What is “family dispute resolution”?
• Process in which FDR Practitioner assists
parties to resolve issues relating to separation
and divorce (section 10F FLA)
• FDR practitioners must be accredited (10G FLA)
• Compulsory before Court unless exemption
applies (60I FLA)
Confidentiality
• Communications made during family counselling
and/or FDR are confidential and inadmissible
unless exemption applies. (sections 10D, 10E,
10I and 10J)
Essentially 10D/10I say:
1. family counsellor/FDR practitioner must not
disclose a communication made in family
counselling/FDR; but
2. must disclose to comply with a law; and
3. may disclose if:
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people consent
disclosure seems necessary to protect a child from
harm, report offence, etc.
to assist ICL
Confidentiality vs. Admissibility
• Communications during family counselling
and/or FDR are not admissible – only exception
is abuse or risk of abuse (sections 10E and 10J)
• So communications that may be disclosed may
still be inadmissible
Essentially 10E/10J say:
1. Evidence of things said with a family counsellor
FDR practitioner conducting family
counselling/FDR is not admissible.
2. Subsection (1) does not apply to an adult’s
admission of child abuse; or a child’s
discussion of abuse; unless the court thinks
there is sufficient other evidence of the
admission or disclosure.
Some issues with
confidentiality and admissibility
Unitingcare – Unifam Case:
• 10D(3): discretion remains with the family
counsellor whether to disclose even if the
parents consent or the Court directs.
• Even if the communication can be disclosed it is
still not admissible unless it relates to abuse or
risk of abuse of a child (10E)
R v Baden-Clay
• Sections 10D and 10E only apply to Courts
exercising family law jurisdiction.
• Public interest of having access to all evidence
outweighed public interest of confidentiality.
• By extension – family counselling would not be
confidential in other non-family law cases e.g.
DVO
FDR / Parenting Plans
• A valid Parenting Plan made at the conclusion of
FDR is not confidential.
• An agreement reached at FDR will be
inadmissible unless it is properly documented as
a Parenting Plan – i.e. signed, dated, no duress.
• Content of FDR is not admissible evidence
about whether an apparently valid Parenting
Plan was made under duress.
What is the FDR “Process”?
2 conflicting cases:
1. Rastall v Ball [2010] – two stage process –
assessment then FDR – only FDR is
confidential.
2. French v Winters [2012] – process may have a
number of parts including engagement with
only one party – all is FDR process so all is
confidential.
Family Counselling
• Confidentiality provisions only apply to
accredited counsellors as per 10C.
• Counselling is directed to parents relationship
and relationship breakdown – not quality of care
of children.
• “Attachment therapy” is not family counselling.
Can you be required to give
evidence to Court?
• Subpoena for documents
• Subpoena for oral evidence
• Report / Affidavit
• Applies to family law and
domestic violence proceedings
Subpoenas – compelled:
• must produce documents to Court or attend to give
evidence
• entitled to be paid conduct money
• can ask for costs of attending Court
• penalties if you don’t comply
• can object to subpoena on limited grounds
- e.g. irrelevant, too broad
• prudent to inform client and seek legal advice prior
to producing documents
Affidavit – voluntary:
• Parent or lawyer requests report
• To be used in court, must be attached to Affidavit
• Can be called to give evidence at trial and be
cross-examined
Conclusion / Tips
• Default position is non-confidentiality.
• Interpretation of confidentiality and admissibility
provisions in the Family Law Act is unclear.
• Assume that your notes can be subpoenaed and
you can be compelled to give oral evidence.
Questions?
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Michael Lynch Family Lawyers
- Level 6, 193 North Quay
- Brisbane QLD 4000.
- Ph: 3221 4300
- Email: law@mlynch.com.au
Fixed Fee – First Consultation $330 (inc. GST)
Resources: (Book, Articles, Newsletters, Podcast…)
www.mlfl.com.au
Questions?