This family law webinar for counsellors explains why client confidentiality is a crucial part of practising as a relationship counsellor and yet it is widely misunderstood. With the increasing role of mediation and other forms of dispute resolution, the provisions of the Family Law Act have come under increasing scrutiny. How do you best keep notes? What to do when disclosures are made to you? These and other topics will be addressed in this webinar. We can help you to better help your clients.

1. COUNSELLORS, COURTS
AND CONFIDENTIALITY
Polly Richardson - Presenter

2. PRESENTER:
POLLY RICHARDSON
• 13 years Specialist Family Law Experience
• Associate at Michael Lynch Family Lawyers

3. MICHAEL LYNCH
FAMILY LAWYERS.
WHO
ARE
WE?
Advice, negotiation, mediation, court
representation.
Specialist Family Lawyers
Established for over 20 years
11 Lawyers - 5 Accredited Specialists
- over 100 years combined
professional experience

4. Regular articles and publications
MICHAELLYNCHFAMILY
LAWYERS.
WHAT
WE
DO.
Fixed cost initial interview
($385 for Solicitor or $440 for Accredited Specialist)
Upfront cost advice
FREE book (over 120,000 copies)
FREE monthly e-newsletter ‘Family Flyer’
(over 5,000 readers)
Presenting over 50 seminars a year

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
Affidavits
Subpoenas
Family
Dispute
Resolution
Counselling
Confidentiality
and Admissibility
Notification
obligations

7. THE LAW LAW:
Family Law Act 1975
(Cth)
COURTS:
• Family Court of
Australia
• Federal Circuit Court
of Australia

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

9. TWO
MAIN
ISSUES
Parental
Responsibilit
y
Living
Arrangements

10. PARENTAL RESPONSIBILITY
• Day-to-day issues
• Major long-term issues
• Equal shared parental responsibility.

11. (PRESUMPTION
CAN BE REBUTTED)
Shared parental
responsibility
Equal time Substantial and
Significant time
Exception:
Family violence Best interests S 60 CC
Reasonably practicable
(PRESUMPTION)
SHAREDPARENTING–ANOVERVIEW

12. ‘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, including:
• Child wishes
• Practical difficulties
• Parents capacity etc...

13. RESOLUTION PROCESS
DIRECT
NEGOTIATION
FAMILY DISPUTE
RESOLUTION
SOLICITORS
NEGOTIATION
COURT
PROCEEDINGS

14. PARENTING AGREEMENTS
Informal Consent ordersParenting plan

15. • 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.
PARENTING
PLANS

16. • Application form and terms of agreement in writing, signed and
dated by parents.
• Submitted to the Court for approval.
• Legally binding and enforceable.
CONSENT
ORDERS

17. 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).

18. COURT PROCEDURES
• Application/Response
• First Hearing
• Family Report
• Independent Children’s Lawyers
• Interim Hearing
• Trial

19. 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.

20. 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).

21. 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.

22. Starting point is non-confidentiality:
• everything can be disclosed
• everything can be subpoenaed
• everything is admissible.
CONFIDENTIALITY
e.g. statements to GP’s, psychologists, therapists
– even if participants treated them as confidential.
Why? So courts can learn the truth.

23. COMMUNICATIONS MADE DURING
“FAMILY COUNSELLING” AND “FAMILY
DISPUTE RESOLUTION”.

24. 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.
• See list current to June 2019 on Attorney-General’s Department website:
https://www.ag.gov.au/FamiliesAndMarriage/Families/FamilyRelationshipServices/Documents/FamilyLawBranchListofcounsellingorganisations1July2014-30June2019.pdf

25. 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).

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

27. 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.

28. 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.

29. 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.

30. SOME ISSUES WITH CONFIDENTIALITY
AND ADMISSIBILITY
‘Unitingcare – Unifam Counselling’ 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).

31. 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

32. 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.

33. Two conflicting cases:
1. Rastall v Ball [2010] – two stage process – assessment then FDR
– only FDR is confidential.
2. French v Winter [2012] – process may have a number of parts
including engagement with only one party – all is FDR process so
all is confidential.
WHAT IS THE
FDR
“PROCESS”?

34. 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.

35. 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.

36. 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.

37. COUNSELLING NOTES PROTECT QLD
• Recent Queensland Legislation protects the counselling records of victims of sexual
assault or alleged sexual assault from being used in some courts.
• The proceedings covered by the legislation are criminal and civil court proceedings
commenced on or after 1 December 2017, including domestic violence court
proceedings.
• The Counselling Notes Protect service provides free legal advice and representation to
individuals covered by the legislation.

38. COUNSELLING NOTES PROTECT QLD (cont)
• Counselling is considered broadly, including when counsellor (which may
include a doctor):
• Listens, gives support, provides help or encouragement, advises, gives
therapy or treatment, including group therapy.
• Counselling records will be protected from being available during a court
case or from being subpoenaed for a court case.
• Counselling notes are not protected by this legislation prior to Court
proceedings being commenced, i.e where police are investigating a
matter.

39. • Tsocas and Rilak – subpoena case:
• Child’s psychologist objected to subpoena as
• “production of documents threatens therapeutic relationship between
psychologist and client”
• Material had potential to be decisive on the question of what is in the
child’s best interests
• Objection dismissed. Access granted BUT limited to use with a therapist
or family report writer.
SUBPOENAS

40. 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.

41. CONCLUSION/TIPS
Default position is
non-confidentiality.
Interpretation of
confidentiality and
admissibility provisions
in the Family Law Act
is unclear.
Practitioners are
encouraged to
consider the purpose
of note keeping –
avoid making notes of
opinions or
judgments, document
ONLY what you see or
hear.
Assume that your
notes can be
subpoenaed and you
can be compelled to
give oral evidence.
Seek advice from
professional bodies
regarding note keeping
and responding to
subpoenas.

42. THANK YOU.
QUESTIONS?
• Email: law@mlynch.com.au
• Feedback survey
• Want to know more?
• Do you have more specific topics relating to Family Law that you
need some answers to?
• We can come to your firm, and give a more in depth presentation.
• Get in touch.

43. GET IN TOUCH
Fixed Fee – First Consultation | $385 (incl. GST) for Solicitor or Associate | $440 (incl. GST) for Accredited Specialist
Address: 9 / 193 North Quay, Brisbane
Phone: (07) 3221 4300 | Email: law@mlynch.com.au | Website: www.michaellynchfamilylawyers.com.au
The material contained in this presentation does not constitute specific legal advice