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? 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? 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 Equal Time Significant and Substantial time Exception: Family Violence Best Interests S 60 CC  Reasonably practicable Presumption can be rebutted

‘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: –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.

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