Counsellors, Court and Confidentiality

1. Counsellors, Court and Confidentiality

2. PRESENTER Amy Campbell • 10 years Specialist Family Law and Child Protection Experience • Accredited Family Law Specialist • Senior Associate at Michael Lynch Family Lawyers

3. 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

4. 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

5. Overview • PRINCIPLES OF THE FAMILY LAW ACT - PARENTING • RESOLUTION PROCESS • DOCUMENTING AGREEMENTS • THE COURT PROCESS • HOW DO YOU FIT IN?

6. How do you fit in? • Advice obligations • Notification obligations • Counselling • Family Dispute Resolution • Confidentiality and Admissibility • Subpoenas • Affidavits

7. Principles • Child’s best interests are paramount • Usually both parents should have high level of meaningful involvement • Parents should try to agree

8. Two Main Issues • Parental Responsibility • Living Arrangements

9. Parental Responsibility • Day-to-day issues • Major long-term issues • Equal shared parental responsibility

10. SHARED PARENTING – AN OVERVIEW Exception: Family Violence (Presumption) Shared parental responsibility Equal Time • Best Interests S 60 CC • Reasonably practicable Significant and Substantial time • Presumption can be rebutted

11. ‘Best Interests’ – S 60CC Primary Considerations: • Benefit to child of having a meaningful relationship with both parents. • 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.

12. Resolution Process • Direct Negotiation • Solicitors Negotiation • Family Dispute Resolution • Court Proceedings

13. Parenting Agreements • Informal • Parenting Plan • Consent Orders

14. 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

15. Court Proceedings • Application/Response • First Hearing • Family Report • Independent Children’s Lawyers • Interim Hearing • Trial

16. 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

17. 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)

18. What is “abuse”? • an assault, including sexual assault of the child • involving child in sexual activity – used directly or indirectly as a sexual object • serious psychological harm, including harm from being subjected to or exposed to family violence • serious neglect

19. 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.

20. Communications made during “family counselling” and “family dispute resolution”

21. 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.

22. 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)

23. Confidentiality • Communications made during family counselling and/or FDR are confidential and inadmissible unless exemption applies. (sections 10D, 10E, 10I and 10J)

24. Essentially 10D/10I say: • family counsellor/FDR practitioner must not disclose a communication made in family counselling/FDR; but • must disclose to comply with a law; and • may disclose if: • people consent • disclosure seems necessary to protect a child from harm, report offence, etc. • to assist ICL

25. 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

26. Essentially 10E/10J say: • Evidence of things said with a family counsellor FDR practitioner conducting family counselling/FDR is not admissible. • 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.

27. 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)

28. 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

29. 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.

30. What is the FDR “Process”? 2 conflicting cases: • Rastall v Ball [2010] – two stage process – assessment then FDR – only FDR is confidential. • 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.

31. 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.

32. 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

33. 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

34. 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

35. 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.

36. Questions? • 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?