Confidential Family Counselling in a Family Law Context ...Confidential Family Counselling in a...

Welcome to

Confidential Family Counselling in a Family Law Context: Mind the Gap

Presented by the Child Family Community Australia (CFCA)

information exchange and the Victorian Family Law Pathways Network

Francesca Gerner Family D• Former ispute Resolution Practitioner.

• In 2007, became Manager of Post Separation Services with Centacare (now CatholicCare Melbourne).

• In 2008, Francesca championed the re-invigoration of the Victorian Family Law Pathways Network, and in 2012 she became Contracts and Network Support Manager for CatholicCare Victoria & Tasmania (CCVT).

• Passionate about using technology to improve access to information and thwart the tyranny of distance.

• For Francesca, today’s webinar is “doing what it takes” to help people be better informed so they can be the best that they can be for their clients.

Professor Richard Chisholm AM aduating • After gr with degrees from Sydney and Oxford,

Richard was admitted as a solicitor, and later as a barrister, and worked as an academic at the Law School at UNSW.

• In 1993 he was appointed a Judge of the Family Court of Australia.

• Since retirement from the bench in 2004, he has resumed academic work and is currently an Adjunct Professor of Law at the ANU College of Law.

• He has recently worked with the Australian Institute of Family Studies and the Commonwealth Attorney-General’s Department on a number of projects, including The Family Courts Violence Review (2009) and, most recently a report on information-sharing between the family courts and child protection departments.

Federal Magistrate Grant Riethmuller l Magistr• Federa ate based in Melbourne, sitting in both the

Federal and Family Law jurisdictions. • He holds a Bachelor of Laws degree from the Queensland

Institute of Technology. • From 1987, he practised as a barrister in Townsville and had

a wide ranging practice. In addition, he lectured part time in Civil Procedure at James Cook University until his appointment to the bench in 2004.

• His Honour is also well known as the consultant editor of the CCH looseleaf services “Federal Magistrates Court Practice” and “Child Support Handbook” and his work on the development of the Court’s e-filing system.

‘Family counselling’ under the Family Law Act: what it is, and why it matters.

Richard Chisholm Adjunct Professor, ANU College of Law

Confidentiality Legal aspects: • whether statements can or should be

disclosed; rule of law • whether evidence of statements is

admissible; rule of law • whether documents containing them

must be produced on subpoena. Practice –whether“proper forensic purpose”

Subpoenas Obliged to comply, otherwise contempt

of court; but you can • seek adjournment. • apply to set it aside, or that

documents not be disclosed. Generally, a subpoena directed to legally confidential material will be set aside as having no proper forensic purpose.

Apart from Family Law Act… Starting point is non-confidentiality: • Everything can be disclosed. • Everything can be subpoenaed. • Everything is admissible. eg. statements to GPs, psychologists, therapists;

Apart from Family Law Act… Starting point is non-confidentiality: • Everything can be disclosed. • Everything can be subpoenaed. • Everything is admissible. eg. statements to GPs, psychologists, therapists; even if participants treated them as confidential.

Apart from Family Law Act… Starting point is non-confidentiality: • Everything can be disclosed. • Everything can be subpoenaed. • Everything is admissible. eg. statements to GPs, psychologists, therapists; even if participants treated them as confidential.

Why? So courts can learn the truth.

Apart from Family Law Act… Non-confidentiality except… (among a few others) Legal negotiations confidential (Evidence Act, s 131)

(ie, not admissible, no disclosure compellable)



Because policy of frank negotiations trumps policy of courts learning the truth.




But not confidential if disclosure of crime, or child abuse, or if parties consent, etc…




But not confidential if disclosure of crime, or child abuse, or if parties consent, etc…

Because now the policy of courts learning the truth trumps policy of frank negotiations.

Policies underpin the law

Legal rules about confidentiality,

in legislation and case law, reflect some policies

trumping others in particular situations.

The Family Law Act’s ‘confidentiality’ provisions (brief)

S 10D: family counsellors must not disclose things said to them.

With exceptions. S 10E: evidence cannot be given of what

people say in the course of family counselling.

With exceptions.

10D Confidentiality of communications in family counselling (1) A family counsellor must not disclose a communication made to the counsellor while the counsellor is conducting family counselling, unless the disclosure is required or authorised by this section.

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

(3) A family counsellor 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 under 18:

(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or (ii) a court.

(4) A family counsellor may disclose a communication if the counsellor 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.

(5) A family counsellor 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) Evidence that would be inadmissible because of section 10E is not admissible merely because this section requires or authorises its disclosure.

[and there’s more..]

but essentially 10D says… (1) family counsellor must not disclose a communication made in family counselling; but (2) must disclose to comply with a law, and (3) may disclose if • people consent; or • disclosure seems necessary to protect child from harm, report offence, etc or • to assist child’s lawyer.

10E Admissibility of communications in family counselling and in referrals from family counselling

(1) Evidence of anything said, or any admission made, by or in the company of:

(a) a family counsellor conducting family counselling; or

(b) a person (the professional) to whom a family counsellor refers a person for medical or other professional

consultation, while the professional is carrying out professional services for the person;

is not admissible:

(c) in any court (whether or not exercising federal jurisdiction); or

(d) in any proceedings before a person authorised to hear evidence (whether the person is authorised by a

law of the Commonwealth, a State or a Territory, or by the consent of the parties).

(2) Subsection (1) does not apply to:

(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. […]

but essentially 10E says… (1) Evidence of things said with a family counsellor

conducting family counselling (or other professionals to

whom clients are referred) is not admissible.

(2) Subsection (1) does not apply to an adult’s admission

of child abuse; or a child’s disclosure of abuse;

unless the court thinks there is sufficient other evidence of the

admission or disclosure […]

The story so far… • The Family Law Act imposes confidentiality

on ‘family counselling’ (and dispute resolution, but that’s another story),

but not on other forms of therapy, counselling etc, even if it’s considered confidential.

• Under the Evidence Act, settlement negotiations are confidential.

To all this there are exceptions.

Defining ‘family counselling’

“family counselling”: s 10B done by a

“family counsellor”: s 10C.



“family counsellor”: s 10C. The words have their ordinary meaning, not any specialist professional meaning.

Section 10B: the activity Family counselling is a process in which a family

counsellor helps: (a) one or more persons to deal with personal and

interpersonal issues in relation to marriage; or (b) one or more persons (including children) who are

affected, or likely to be affected, by separation or divorce to deal with either or both of the following:

(i) personal and interpersonal issues; (ii) issues relating to the care of children.

Paragraph (a) (marriage counselling)

“…a process in which a family counsellor helps:

(a) one or more persons to deal with personal and interpersonal issues in relation to marriage;”

Marriage: ‘the union of a man and a woman to the exclusion of all others, voluntarily entered into for life”. [s 4 of the Marriage Act 1961].

H and W can’t get on Yep, obviously

H and W can’t get on Yep, obviously H and W fight over supervision of drug

addicted 16 year old son


addicted 16 year old son Probably - “personal and interpersonal issues in

relation to marriage”



relation to marriage” H and W together seek advice on treatment

for drug addicted son.



relation to marriage” H and W together seek advice on treatment

for drug addicted son. Probably not - no issues in relation to

marriage

Fred and Jill, grandparents, come because of their daughter – they think her husband is being violent and wonder how they can help her. “Family counselling”?

Fred and Jill, grandparents, come because of their daughter – they think her husband is being violent and wonder how they can help her. “Family counselling”? [“…helps one or more persons to deal with personal and interpersonal issues in relation to marriage;”]

Fred and Jill, grandparents, come because of their daughter – they think her husband is being violent and wonder how they can help her. “Family counselling”? [“…helps one or more persons to deal with personal and interpersonal issues in relation to marriage;”]

Probably yes, even though it’s not their marriage.

Fred and Jill, grandparents, come because of their daughter – they think her husband is being violent and wonder how they can help her. Does it matter whether Fred and Jill are

married?

Fred and Jill, grandparents, come because of their daughter – they think her husband is being violent and wonder how they can help her. Does it matter whether Fred and Jill are

married?

No . [“…helps one or more persons to deal with

personal and interpersonal issues in relation to marriage;”]

Fred and Jill, grandparents, come because of their daughter – they think her husband is being violent and wonder how they can help her. What if their daughter is unmarried, in a de facto relationship?

Fred and Jill, grandparents, come because of their daughter – they think her husband is being violent and wonder how they can help her. What if their daughter is unmarried, in a de facto relationship?

Not para (a)marriage counselling [“…helps one or more persons to deal with personal and interpersonal issues in relation to marriage;”]

Paragraph (a) (marriage counselling) “…a process in which a family counsellor

helps: (a) one or more persons to deal with personal and interpersonal issues in relation to marriage;”

And so, goodbye paragraph (a)…

guess what’s next?

Yes! Paragraph (b) “… helps (b) one or more persons (including

children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:

(i) personal and interpersonal issues; (ii) issues relating to the care of children.”

Paragraph (b) “… helps (b) one or more persons (including


(i) personal and interpersonal issues; (ii) issues relating to the care of children.” In other words…?

Paragraph (b) “… helps (b) one or more persons (including


(i) personal and interpersonal issues; (ii) issues relating to the care of children.” In other words…roughly “helps someone deal with family breakdown”

Look, I’m too busy for webinars: family counselling is what?


helping people deal with marriage problems or family breakdown.



Well, roughly.



Well, roughly. Should the Act have said that?

A real case (Madeiros v Frank)

De facto mother kills father, goes to prison. Child seeing an ‘art therapist’ in confidential setting ‘to assist her recovery from trauma’. Parties agreed that therapist was a family counsellor. Subpoena to therapist; objection. Was it family counselling?

A real case (Madeiros v Frank) Burchardt FM: YES; the process was ‘family counselling’. “Ms R was a person engaged in a

process designed to help [the child], as a person affected by separation, to deal with personal and interpersonal issues and issues relating to her care.”

In these circumstances, the prohibition on disclosure contained in s.10D of the Act seems to me to apply…”

Components of par (b) • a process in which a family counsellor helps

persons, including children, • who are affected, or likely to be affected, by

separation or divorce, “Separation” - only the parents’ separation? • deal with personal and interpersonal issues, Issues usually both personal and interpersonal • Deal with issues relating to the care of

children

Limited to care of parties’ children?

A tricky case: Kidd & London [2011] FMCAfam 1084

Case involved care arrangements for two children of the parties, who had been separated. It was agreed that the children had been bullied at school.

Subpoena directed to the notes of a school counsellor in relation to counselling the children.

Objection: the agency was gazetted under the Act, and s 10E therefore applied.

Good argument? Answer?

A tricky case: Kidd & London (Hughes FM)

The definition “seems fairly strongly directed at the marriage relationship or the interpersonal relationship of the parents, and the effects of the breakdown of the relationship”. Here, parties separated since 2006, and “The issues between them do not really have to do with the breakdown of the relationship; they have to do with the quality of the care provided by the mother …[and] the quality of the care to be provided by [the father] …”

Paragraph (b) “… helps (b) one or more persons

(including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:

(i) personal and interpersonal issues; (ii) issues relating to the care of

children.”

A tricky case: Kidd & London Maybe it’s enough that someone is

affected by separation, and the counsellor helps the family to “deal with (any, not only separation-related) issues relating to the care of children.”

If so, the court needed to find that they were not affected by the separation.

Did it? Let’s look again…

A tricky case: Kidd & London [2011] FMCAfam 1084

Hughes FM: “ … The issues between them do not really have to do with the breakdown of the relationship; they have to do with the quality of the care provided by the mother…”

Think about it. Anyway, time to move on…



“family counsellor”: s 10C.

So let’s look at 10C…

Section 10C(b): the person

“family counsellor”: ‘a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph’.


“family counsellor”: ‘a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph’. ie a designated organisation authorises a person - legally, anyone - to act on its behalf.


“family counsellor”: ‘a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph’. ie a designated organisation authorises a person - legally, anyone - to act on its behalf.

Not, eg, “to conduct family counselling”.

Problem A designated agency provides drug counselling. In the course of counselling a parent of a drug-addicted child who has left home, the counsellor advises the parent on marriage problems. Confidential? Let’s see…

Problem A designated agency provides drug counselling. In the course of counselling a parent of a drug-addicted child who has left home, the counsellor advises the parent on marriage problems. Confidential? Let’s see… Is the person a family counsellor? Yes. [“person who is authorised to act on behalf of an organisation designated by the Minister”].

Problem A designated agency provides drug counselling. In the course of counselling a parent of a drug-addicted child who has left home, the counsellor advises the parent on marriage problems. Confidential? Let’s see… Is the person a family counsellor? Yes (?). [“person who is authorised to act on behalf of an organisation designated by the Minister”]. Family counselling? Yes, para (a).

Problem The drug counsellor advises the parent about the parent’s own anxiety relating to drugs; or about how best to relate to the child. “Family counselling’?

Problem The drug counsellor advises the parent about the parent’s own anxiety relating to drugs; or about how best to relate to the child. “Family counselling’? “helping a person affected by separation [yes - both parent and child] to deal with personal and interpersonal issues [yes]”; issues relating to the care of children [yes].”

Problem The drug counsellor advises the parent about the parent’s own anxiety relating to drugs; or about how best to relate to the child. “Family counselling’? “helping a person affected by separation [yes - both parent and child] to deal with personal and interpersonal issues [yes]”; issues relating to the care of children [yes].”

So, it does seem to be family counselling.

When does it start? Is the intake process family counselling? Family counsellor? depends – yes if literal definition, but perhaps not if specific interpretation is correct. Family counselling? perhaps not – arguably the person is not yet ‘helping’ but getting ready to help. Rastall & Ball applies to dispute resolution, and excludes intake. But maybe counselling is different.

What if the court can’t tell what it is?

Smirnov v Turova – ‘attachment therapy’ but court not told what that is. Walters FM: If court doesn’t know what

it is, confidentiality sections don’t apply.

Reminds us that non-confidentiality is the law’s default position: court needs to know truth.


“family counsellor”: ‘a person who is authorised to act on behalf of an organisation designated by the Minister for the purposes of this paragraph’.

Two interpretations of ‘family counsellor’

1. Literal or open-ended’ interpretation - words taken at face value: includes anyone authorised to ‘act on behalf of’ the organisation, eg drug counsellor.

2. ‘Specific interpretation’ - limits ‘family counsellor’ to someone the organisation authorises to conduct family counselling.

Proposals agencies might consider

• Spell out which activities they consider are family counselling.

• Seek court ruling that the definition, correctly interpreted, refers to a person authorised to conduct family counselling.

• Seek an amendment so that s 10C(1)(b) says ‘a person authorised (by designated organisation) to conduct family counselling’.

To sum up… Apart from Family Law Act Generally things are non-confidential; but legal negotiations are confidential

(Evidence Act, s 131)

The Family Law Act’s ‘confidentiality’ provisions (brief)

S 10D: family counsellors generally must not disclose things said to them in family counselling.

S 10E: evidence generally cannot be given of what people say in family counselling.

Defining ‘family counselling’ “family counselling” (the activity): s 10B Roughly, marriage and family breakdown; but • unclear whether intake is counselling • some other uncertainties “family counsellor” (the person): s 10C. whether refers only to people authorised to engage in family counselling, or (what the words say) includes anyone authorised to act on behalf of the organisation.

Federal Magistrate Grant Riethmuller • Federal Magistrate based in Melbourne, sitting in both the

Federal and Family Law jurisdictions. • He holds a Bachelor of Laws degree from the Queensland

Institute of Technology. • From 1987, he practised as a barrister in Townsville and had

a wide ranging practice. In addition, he lectured part time in Civil Procedure at James Cook University until his appointment to the bench in 2004.

• His Honour is also well known as the consultant editor of the CCH looseleaf services “Federal Magistrates Court Practice” and “Child Support Handbook” and his work on the development of the Court’s e-filing system.

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