Issues in Relation to Confidentiality and Admissibility Donna Cooper

Queensland University of Technology Brisbane

d.cooper@qut.edu.au

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To discuss: The exceptions to confidentiality and inadmissibility in

family dispute resolution (FDR) set out in ss10H and 10J of the Family Law Act 1975 (Cth): ◦ The types of statements made by parties in family dispute

resolution (FDR) that may be disclosed by family dispute resolution practitioners (FDRPs) to others and that will be admissible in court;

How the types of statements that will be admissible in court are far more limited than those than those that may be disclosed by the FDRP;

Concerns with the way the current law operates when threats have been made by one parent to harm another parent in FDR;

Q: Whether the admissibility section should be amended?

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Generally what is said in FDR is confidential and cannot: ◦ Be disclosed to others by the FDRP; or ◦ Referred to in a later court or Tribunal hearing: ◦ BUT

There are certain exceptions under sections 10H and 10J of the Family Law Act 1975 (Cth); and

The similar counselling sections are s10D and s10E; Also exception s131 Evidence Act 1995 (Cth).

Under reg 28 Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth). ◦ FDRP needs to explain confidentiality and admissibility to the parties:

Before FDR (in Intake) and helpful to repeat this in Opening Statement.

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Family Law Act, s10H

(1) A FDRP must not disclose a communication made to the practitioner while the practitioner is conducting family dispute resolution

unless falls within one of the exceptions.

Rastall & Ball [2010] FMCAfam 1290 (22 November 2010]. ◦ Reithmuller FM: Intake is a separate phase of process

and disclosures made in Intake are not confidential under s10H.

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(2) A FDRP must disclose a communication if the practitioner reasonably believes the disclosure is necessary for the purpose of complying with a law of the Commonwealth, a State or a Territory.

(3) A FDRP may disclose a communication if consent to the disclosure is given by: ◦ (a) if the person who made the communication is 18 or

over—that person; or ◦ (b) if the person who made the communication is a child:

each person who has parental responsibility for the child;

or a court.

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Family Law Act, s10H [s10D] (4) A FDRP may disclose a communication if the practitioner reasonably believes that the disclosure is necessary for the purpose of: (a) protecting a child from the risk of harm (whether physical or

psychological); or (b) preventing or lessening a serious and imminent threat to the life or

health of a person; or (c) reporting the commission, or preventing the likely commission, of an

offence involving violence or a threat of violence to a person; or (d) preventing or lessening a serious and imminent threat to the

property of a person; or (e) reporting the commission, or preventing the likely commission, of an

offence involving intentional damage to property of a person or a threat of damage to property; or

(f) if a lawyer independently represents a child’s interests under an order under section 68L—assisting the lawyer to do so properly.

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Family Law Act, s10H (5) A FDRP may disclose a communication in order to provide information (other than personal information within the meaning of section 6 of the Privacy Act 1988) for research relevant to families. (6) A family dispute resolution practitioner may disclose information necessary for the practitioner to give a certificate under subsection 60I(8). (7) Evidence that would be inadmissible because of section 10J is not admissible merely because this section requires or authorises its disclosure. Note: This means that the practitioner’s evidence is inadmissible in court, even if subsection (2), (3), (4), (5) or (6) allows the practitioner to disclose it in other circumstances. (8) In this section: communication includes admission.

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A FDRP (and registrar, family consultant, family counsellor, ICL) MUST notify a prescribed welfare authority if s/he have reasonable grounds for suspecting that a child; ◦ has been abused;

◦ or is at risk of abuse;

Must make notification as soon as practicable of suspicion and reason for suspicion ◦ unless a notification has already been made.

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s4 Family Law Act 1975 (Cth):

An assault including a sexual assault;

Involving the child in a sexual activity;

Causing the child to suffer serious psychological harm, including being subjected to or exposed to family violence;

Serious neglect of the child.

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The FDRP (and registrar, family consultant, family counsellor, ICL) ) MAY notify the prescribed welfare authority s/he if have reasonable grounds to suspect that: ◦ a child has been ill treated or is at risk of being ill

treated; or

◦ has been exposed or subjected to or is at risk of being exposed or subjected to behaviour which psychologically harms the child.

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In Western Australia counsellors and FDRPs are required to make a notification where they have reasonable grounds for suspecting that a child has been or is at risk of abuse, ill treatment or psychological harm. ◦ Family Court Act 1997 (WA).

In Victoria registered psychologists have to report if they believe on reasonable

grounds that a child is in need of protection due to concerns that they have suffered or will suffer harm as a result of sexual, physical or psychological abuse and ill health. ◦ Children Youth and Families Act 2005 (Vic).

In South Australia social workers and psychologists must notify if they suspect on

reasonable grounds that a child has been or is being abused or neglected. ◦ Children’s Protection Act 1993 (SA),

Tasmanian psychologists have to report where they know, believe or suspect on

reasonable grounds that a child is suffering, has suffered or is likely to suffer abuse or neglect or that an unborn child will likely to suffer abuse or neglect or require medical treatment or intervention as a result of the behaviour of the mother. ◦ Children, Young Persons and Their Families Act 1997 (Tas).

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Family Law Act, s10J [10E] (1) Evidence of anything said, or any admission made, by or in the company of: (a) a FDRP conducting family dispute resolution; Is not admissible in any court or Tribunal unless falls within one of the exceptions.

Rastall & Ball [2010] FMCAfam 1290 (22

November 2010]. ◦ Reithmuller FM: Intake is a separate phase of process

and not inadmissible under s10J ie. notes re intake admissible in court and can be subpoenaed.

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Family Law Act, s10J [10E] Exceptions: (a) an admission by an adult that indicates that a

child under 18 has been abused or is at risk of abuse; or

(b) a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse; ◦ unless in the opinion of the court, there is sufficient

evidence of the admission or disclosure available to the court from other sources.

And information necessary for the FDRP to give a

certificate under subsection 60I(8).

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A professional to whom a family dispute resolution practitioner refers a person for medical or other professional consultation, while the professional is carrying out professional services for the person.

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s131:

Communications between persons in connection with attempt to negotiate settlement of dispute.

A document prepared in connection with attempt at settlement.

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[2013] FCCA 660 (28 June 2013);

Federal Circuit Court;

Counselling admissibility section s10E;

Mother sought to include in her affidavit material, statements by counsellor to her that Father had made threats to her life in solo counselling session.

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M’s statement in her affidavit:

“On 10 April 2013 after attending about 6 appointments with Unifam I received a telephone call from Ms C where she said words to the effect”: ◦ In a session with me Mr Searle made several

statements that could be construed as a threat against your life. [19]

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Harman J held: threats to mother inadmissible in court as not exceptions under counselling admissibility section s10E, paras in her affidavit struck out.

Did not fall within s10E(2)(a): ◦ an admission by an adult that indicates that a child

under 18 has been abused or is at risk of abuse.

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Harman J:

…a risk of abuse may be established if a clear threat were made by one parent with respect to the life of the other;

as the carrying out of that threat would likely cause serious psychological harm to the child if the child were so exposed [def’n family violence in s4AB] ;

However, the paragraphs sought to be relied on by M do not contain evidence of any specific statement by F but purely a construction or interpretation of a statement made by the F. [78]

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M argued threats should have been admitted into evidence on public policy grounds due to principles of protecting litigants from family violence eg. Family Court, Family Violence Best Practice Principles.

Harman J: ◦ Public policy considerations required a narrow

interpretation of the exceptions.

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…a concern not to compromise the ability of the parties undergoing counselling to discuss in a free and frank manner their relationship difficulties … allows parties to explore possibilities for improving relationships in as confidential a framework as possible, without feeling that they must carefully watch what they say in case it is subsequently used against them in criminal, family or civil proceedings.

Family Law Council, Family Law and Child Protection: Final Report (2002).

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Family Court of Australia, Bryant CJ has suggested that consideration be given to waiving non-admissibility in family violence cases so judges can access all relevant information when making decisions: ◦ Law Council of Australia, Submission to National

Alternative Dispute Resolution Advisory Council (NADRAC) Inquiry into the Integrity of ADR Processes (26 August 2010).

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Should the confidentiality and admissibility sections re FDR and counselling processes [ss10J and 10E ] be amended so that threats by one parent to harm another parent:

◦Must be disclosed; AND

◦ Are admissible in court?

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