Admissibility of FDR and family counselling communications

22.52 Even where a family counsellor or FDR practitioner is permitted to disclose a communication, it may not be admissible as evidence in court proceedings. Pursuant to ss 10E and 10J of the Family Law Act, evidence of anything said, or any admission made, by or in the company of a family counsellor or FDR practitioner is inadmissible ‘in any court (whether or not exercising federal jurisdiction)’ or ‘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)’. There are exceptions where:

  • an admission by an adult indicates that a child under 18 has been abused or is at risk of abuse; or

  • a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse.[66]

Disclosures about a child’s exposure to family violence

22.53 Disclosures made to FDR practitioners and to family counsellors about a child’s exposure to family violence are, in accordance with ss 10E and 10J, inadmissible. In its 2009 report, the Family Law Council briefly considered the prohibition on the admissibility of such communications in the general context of disclosure of family violence in family law proceedings. The Council noted that it is ‘possible that a party to proceedings involving a child does not disclose that he or she and/or the subject children are being, or have been exposed to serious family violence’,[67] and recommended an amendment to s 10E of the Act to allow disclosures about a child’s exposure to family violence to be admitted into evidence.[68] In the Consultation Paper, the Commissions proposed that ss 10E and 10J be amended to enable such disclosures made to family counsellors and FDR practitioners to be admitted into evidence.[69]

Submissions and consultations

22.54 A number of submissions expressed support for the Commissions’ proposal to make disclosures regarding children’s exposure to family violence admissible.[70] The Queensland Law Society and Dr Olivia Rundle were of the view that the amendment should be made subject to the current restriction on admissibility in ss10E and 10J—that is, admissions or disclosures of children’s exposure to family violence should be admissible, unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.[71] The National Peak Body for Safety and Protection of Parents and Children supported admissibility of such disclosures ‘with discretion’, and noted the danger of false allegations.[72]

22.55 Submissions noted that exposure to family violence is detrimental to children, in the same way as direct experience of family violence or child abuse.[73]The Family Issues Committee of the Law Society of New South Wales also argued that if the relevant evidence is not available, a court’s ability to put in place appropriate parenting arrangements will be constrained; the limitations on admissibility in ss 10E and 10J will, in some cases, shield family violence, and so may contribute to exposing children to risk.[74]

22.56 Stakeholders also commented on the effect of requiring disclosures related to family violence to be repeated in subsequent litigation.[75] The Magistrates’ Court and the Children’s Court of Victoria stated that it is not appropriate to duplicate the taking of evidence about family violence and to require multiple disclosures before action is taken.[76] In their submission to this Inquiry, the Chief Justice of the Family Court of Australia and the Chief Federal Magistrate referred to the Family Court’s Child Responsive Program (CRP),[77] which they described as a non-privileged court-based FDR model, and commented that, in the Family Court’s experience, participants in the CRP had not been reluctant to raise issues or make disclosures because these could be communicated to a judicial officer. They stated that the Family Court’s family consultants had advised that parties appreciate the opportunity to ‘tell their story’ in the knowledge that the process won’t have to be repeated should their dispute proceed to trial.[78]

22.57 Other stakeholders suggested that the proposal should be more limited. The FRSA was of the view that the proposal should be limited ‘to avoid rendering inadmissibility ineffective in the context of a very broad definition of family violence’. It was noted that while it is not uncommon for children to witness conflict between separating parents, there can be considerable variation in the context, severity and potential impact of such conflict. Family Relationship Services Australia (FRSA) considered that one-off occurrences, such as verbal abuse, related to separation conflict between two otherwise non-violent parents, would not warrant an extension of admissibility.[79]

22.58 Professor Julie Stubbs commented that if this proposal is adopted, it should be limited to matters in which family violence is having, or is likely to have, a detrimental effect on a child. Professor Stubbs noted that child protection authorities sometimes use exposure to family violence in ways that may undermine parents who are, themselves, the victims of family violence. In such cases, victims of family violence may be held responsible for being unable to protect their children from their partner’s violence.[80]

22.59 National Legal Aid expressed reservations about the proposed amendments to make disclosures of children’s exposure to family violence admissible, and suggested further consultations with relevant stakeholders on this issue. In addition, National Legal Aid suggested that, given the increasing number of organisations running child-inclusive mediations, consideration should be given to whether disclosures made by children should be treated differently from disclosures made by adults.[81]

22.60 Women’s Legal Services NSW acknowledged that women have difficulties bringing evidence of family violence to court and that lack of available evidence is one of the biggest hurdles in family law proceedings. However, while Women’s Legal Services NSW noted its support for efforts to improve the system’s responsiveness to disclosures of family violence, it also emphasised that:

there are real concerns about a range of issues that arise in moving towards a system where there is more disclosure and sharing of information. These include potential risk of harm to the person disclosing violence; the integrity of counselling relationships and family dispute resolution processes; and the possibility that failure to indicate family violence could inappropriately lead to an assumption that there is no family violence. These and other concerns must be fully considered.[82]

22.61 The Dispute Resolution Committee of the Law Society of New South Wales expressed strong objections to the proposed amendments to ss 10E and 10J, arguing that if FDR practitioners were to commence giving evidence of disclosures made during FDR, parties will be guarded about what they say during FDR, and FDR practitioners will avoid being required to give evidence and being subjected to cross-examination.[83]

22.62 In another submission objecting to the proposed amendments, Geoff Charlton, an FDR practitioner, expressed serious concerns about drawing FDR practitioners into adversarial litigation processes and using largely untested claims of violence made in FDR in subsequent litigation. Charlton noted that FDR is not concerned with evidentiary proof, and warned that superimposing the culture and requirements of litigation on FDR would reduce its effectiveness. In Charlton’s view, admissions of violence would not be made in FDR if they were to be subsequently used in court.[84]

22.63 As noted above, Domestic Violence Victoria and others, in a joint submission, expressed support for the Commissions’ proposal to make disclosures regarding children’s exposure to family violence admissible. The Commissions also note other comments made by these stakeholders with respect to improving evidence and information sharing generally. In their joint submission, Domestic Violence Victoria and others expressed the view that a shared understanding of risk factors and a common approach to risk assessment would improve the availability and quality of evidence to support claims of family violence in applications for protection orders through state and territory courts and parenting orders through federal courts. These stakeholders noted that:

Shared frameworks for supporting a woman to tell her story, and clear practice directions about asking questions about violence can assist her to tell her story more clearly, regardless of where she first presents for support. The flow on is that greater clarity and more detail about the violence that is available to the court will usually lead to good evidence to support the allegations.[85]

Commissions’ views

22.64 Submissions highlighted the potentially significant implications of amending ss 10E and 10J to make disclosures of children’s exposure to family violence admissible, and reflect significant differences in views on this matter.

22.65 The Commissions understand that exposure to family violence can have direct negative and serious effects on children.[86] The Commissions also accept that there can be considerable variation in the context and severity of the conflict between separating parents, and that this may affect the actual or likely detriment to children.

22.66 The Commissions note National Legal Aid’s comment with respect to whether disclosures made by children about their exposure to family violence should be treated differently from disclosures made by adults. Disclosures made by a child about exposure to family violence may be significant in indicating detriment, or risk of detriment, to that child. In the absence of further submissions on this point, however, the Commissions do not have a sufficient basis upon which to make recommendations.

22.67 The Commissions have also considered the comments made by Chief Justice Bryant and Chief Federal Magistrate Pascoe with respect to the Family Court’s CRP, and the willingness of participants in the CRP to raise issues or make disclosures, even though these communications may be admissible. The Commissions note, however, that CRP meetings between parents or carers, children and family consultants are different from FDR. The CRP is designed to complement and assist court processes and judicial decision making, rather than as a stand-alone alternative dispute resolution process. As an adjunct to court proceedings, it is logical that communications and disclosures made within the CRP may be treated as evidence to assist in the determination of the dispute before the court. In the Commissions’ view, therefore, communications in the court-related environment of CRP meetings are not readily comparable with communications in the non-court environment of FDR.

22.68 The Commissions acknowledge the difficulties associated with gathering evidence of family violence. The Commissions have, therefore, given careful consideration to balancing the courts’ need for evidence of children’s exposure to family violence with the need to protect the integrity of FDR processes and family counselling relationships.

22.69 The Commissions note that the Family Court’s CRP involves a comprehensive family violence screening and risk assessment process, including specific questions about children’s exposure to family violence. As noted above, communications and disclosures made in CRP meetings are admissible in family law proceedings. In the Commissions’ view, this is a more appropriate mechanism than FDR or family counselling for gathering evidence about children’s exposure to family violence for the purposes of family law proceedings.

22.70 Below, the Commissions recommend that ss 10E and 10J be amended to clarify that they apply to state and territory courts when they are not exercising family law jurisdiction. The Commissions have considered the need for evidence of children’s exposure to family violence for the purposes of non-family law proceedings. In particular, the Commissions have considered whether the value of evidence from FDR or family counselling about children’s exposure to family violence would outweigh the significant implications of making such evidence admissible.

22.71 Disclosures about a child’s exposure to family violence, made in the context of a non-forensic FDR process or non-forensic family counselling, are not tested and reviewed with appropriate legal safeguards. In the Commissions’ view, such disclosures will, as a consequence, have limited evidentiary value. This limited value does not outweigh the significant implications of amending ss 10E and 10J to make such disclosures admissible.

22.72 The Commissions note stakeholder concerns about the implications of amending ss 10E and 10J, discussed above. In addition, the Commissions note that some of the concerns raised by stakeholders with respect to the Commissions’ proposal to include information about family violence on s 60I certificates, discussed below, may also be relevant in the context of admissibility of disclosures relating to family violence generally. In particular, the Commissions note the concern that if such disclosures can be used as evidence in legal proceedings, parties may be less open or may conceal information about family violence in FDR and family counselling. This would compromise the potential for safe arrangements and agreements to be made, and for appropriate outcomes to be secured through FDR and family counselling. As a consequence, victims of family violence could be exposed to greater risk.

22.73 As noted above, the Commissions acknowledge the difficulties associated with gathering evidence for family violence. The Commissions consider the difficulties of giving evidence of family violence to different courts in Chapter 18 of this Report. The Commissions note, in Chapter 18, that risk assessment is a key way in which courts can identify and respond to family violence. The Commissions further note that a common approach to risk assessment, across all jurisdictions, would mean that the needs of victims of family violence are consistently understood and addressed by all service providers, including courts and lawyers. In their comments about common risk assessment, referred to above, Domestic Violence Victoria and others expressed the view that a common approach to risk assessment would improve the evidence given to support claims of family violence before courts.

22.74 In this Report, the Commissions have made a number of recommendations in relation to definitions of family violence, additional education, training and specialisation of judicial and court officers and legal practitioners, and in relation to improving the quality of evidence supporting family violence allegations. The Commissions are of the view that the implementation of these recommendations, together with a common approach to risk assessment, will assist courts and legal practitioners in addressing family violence concerns in legal proceedings.

22.75 Having considered stakeholders’ comments and the issues discussed above, the Commissions conclude that the arguments in favour of making disclosures of children’s exposure to family violence admissible do not outweigh the public interest in protecting the integrity and ability of FDR and family counselling to secure safe outcomes for victims of family violence.

Other disclosures of family violence

22.76 In the Consultation Paper, the Commissions sought stakeholder views as to whether ss 10E and 10J of the Family Law Act should be amended to enable the admission of communications made to family counsellors and FDR practitioners which disclose family violence, and if so, what limits should be placed on the admissibility of such evidence.[87]

Submissions and consultations

22.77 A number of stakeholders indicated support for amendments to make disclosures of family violence admissible.[88] The Queensland Law Society and the Law Council of Australia were of the view that the amendment should be made subject to the current restriction on admissibility in ss 10E and 10J—that is, admissions or disclosures of children’s exposure to family violence should be admissible, unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources.[89] The Dispute Resolution Committee of the Law Society of New South Wales, however, expressed strong objections to admissibility of disclosures of family violence, and referred to the same arguments it made against admissibility of disclosures about a child’s exposure to family violence.[90] Professor Stubbs also noted the risk of deterring frank discussions with FDR practitioners and family counsellors, which could be counterproductive.[91] National Legal Aid also indicated it had reservations and referred to its comments with respect to admissibility of disclosures about a child’s exposure to family violence.[92]

Commissions’ views

22.78 The Commissions consider that many of the concerns arising in the context of disclosures about a child’s exposure to family violence, also arise in relation to making disclosures of family violence admissible. As with disclosures about a child’s exposure to family violence, the potential implications of amending ss 10E and 10J to make disclosures relating to family violence admissible are significant. As well as concerns raised in the submissions discussed above, some of the concerns raised with respect to the Commissions’ proposal to include information about family violence on s 60I certificates may also be relevant in the context of admissibility of disclosures relating to family violence generally.[93] The possibility that parties will be less open, or will conceal information about family violence in FDR and family counselling because disclosures may be used as evidence, is of particular concern. This would compromise the potential for safe and appropriate outcomes to be secured through FDR and family counselling; consequently victims and potential victims of family violence may be exposed to greater risk.

22.79 As noted above, the Family Court’s CRP involves a comprehensive family violence screening and risk assessment process, including specific questions about the frequency, pattern and type of any violence. In the Commissions’ view, this is a more appropriate mechanism than FDR or family counselling for gathering evidence about family violence for the purposes of family law proceedings.

22.80 The Commissions have also considered the need for evidence of family violence for the purposes of non-family law proceedings. As with disclosures about a child’s exposure to family violence, the Commissions are of the view that disclosures about family violence made in FDR or family counselling have limited evidentiary value. This limited value does not, in the Commissions’ view, outweigh the significant implications of amending ss 10E and 10J to make such disclosures admissible. The Commissions reiterate their comments above with respect to other measures for improving evidence of family violence in legal proceedings. As noted above, implementation of the Commissions’ recommendations in relation to: definitions of family violence; additional education, training and specialisation of judicial and court officers and legal practitioners; improving the quality of evidence supporting family violence allegations; and a common approach to risk assessment, will better assist courts and legal practitioners in addressing family violence concerns in legal proceedings.

22.81 As with disclosures about a child’s exposure to family violence, the Commissions conclude that the arguments in favour of making disclosures about family violence admissible do not outweigh the public interest in protecting the integrity and ability of FDR and family counselling to secure safe outcomes for family violence victims and those at risk of family violence.

Application of sections 10E and 10J to state and territory courts

22.82 Communications to family counsellors and FDR practitioners may be relevant to family violence and child protection matters before state and territory courts, as well as to matters before the family courts. In the Consultation Paper, the Commissions asked whether ss 10E and 10J should be amended to apply expressly to state and territory courts when they are not exercising family law jurisdiction.[94]

22.83 Sections 10E(1) and 10J(1) provide that FDR and family counselling communications are not admissible:

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

  • in any proceedings before a person authorised to hear evidence (whether authorised by a Commonwealth, state or territory law, or by consent of the parties).

22.84 In Anglicare (WA) v Department of Family and Children’s Services, the Supreme Court of Western Australia held that the prohibition on admissibility ‘in any court (whether or not exercising federal jurisdiction)’ set out in s 19N of the Family Law Act—the predecessor to the current s 10E—was limited by the definition of ‘court’ in s 4 of the Family Law Act to the court exercising jurisdiction in the Family Law Act proceedings. Accordingly, the inadmissibility provisions did not extend to proceedings in the Children’s Court of Western Australia.[95]

22.85 Similar reasoning was used by the majority of the Supreme Court of South Australia in R v Liddy (No 2) to permit the admission of Family Law Act counselling records in criminal proceedings. However, in a dissenting opinion, Wicks J expressed the view that ‘any court (whether exercising federal jurisdiction or not)’ should be interpreted more broadly:

Where non-federal jurisdiction, ie State jurisdiction, is concerned, the words (whether exercising federal jurisdiction or not) clearly make the expression ‘court’ applicable to courts generally, including this court, the Supreme Court of South Australia.

If the expression ‘court’ is used to have the widest possible meaning and is not limited merely to courts exercising federal jurisdiction relating to family law, the structure of sub-s (2) is logical. The sub-section begins by prohibiting courts of every complexion and whether exercising federal or State jurisdiction, from admitting into evidence anything said at a meeting or conference to which the sub-section applies. Par (b) then proceeds to deal with tribunals, mediations and arbitrations where the bodies concerned are authorised to hear evidence. In other words, sub-s (2) embraces the entire field in Australia of bodies authorised to hear evidence, be they courts or otherwise, from admitting into evidence anything said or any admission made at a meeting or conference referred to in the sub-section. …

It seems to me that it would be illogical to limit the operation of the section to a few courts which deal with family law and yet to express par (b) in the widest possible terms specifically including persons authorised by a law of the Commonwealth, or of a State or territory or even by the consent of the parties, to hear evidence.[96]

22.86 The Commissions note that the Australian Government Attorney-General’s Department—in guidance material for FDR practitioners and family counsellors published on the Department’s website—has indicated that ss 10E and 10J extend to state and territory courts when they are not exercising family law jurisdiction. With respect to s 10E, the Attorney-General’s Department’s resource for FDR practitioners, Frequently Asked Questions: Family Dispute Resolution Practitioner Obligations, explains that ‘[c]ommunications made in family dispute resolution are not admissible in any court or proceedings, in any jurisdiction’.[97] The Attorney-General’s Department’s resource for family counsellors, Family Counsellors in the Family Law System, also explains that ‘[s]ections 10E and 10J of the Family Law Act provide that a communication made in family counselling (and family dispute resolution) is not admissible in any court or proceedings, in any jurisdiction’.[98]

Submissions and consultations

22.87 There was some support in submissions for amendments to expressly apply ss 10E and 10J to state and territory courts when they are not exercising family law jurisdiction.[99]

22.88 The Family Issues Committee of the Law Society of New South Wales expressed strong opposition to such amendments because, in the Committee’s view, ss 10E and 10J operate inappropriately and potentially to the detriment of children.[100] The Dispute Resolution Committee of the Law Society of New South Wales, on the other hand, expressed its strong support for amendments to expressly apply ss 10E and 10J to state and territory courts on the basis of the Committee’s view that the existing admissibility provisions in ss 10E and 10J operate appropriately and so should apply to state and territory courts.

Commissions’ views

22.89 The Commissions note that there is no clear policy rationale for making communications to family counsellors and FDR practitioners inadmissible in Family Law Act proceedings but admissible in protection order proceedings or child protection proceedings under state and territory family violence or child protection legislation.

22.90 Consistency in the application of admissibility rules for FDR and family counselling communications across jurisdictions is important for both fairness and certainty. The Commissions consider that ss 10E and 10J should be amended to make it clear that the application of these provisions extends to state and territory courts when they are not exercising family law jurisdiction.

Recommendation 22–4 Sections 10E and 10J of the Family Law Act 1975 (Cth), which regulate the admissibility of family dispute resolution and family counselling communications, should be amended to state expressly that the application of these provisions extends to state and territory courts not exercising family law jurisdiction.

[66]Family Law Act 1975 (Cth) ss 10E(2), 10J(2). In addition, s 10J(3) provides that the limited information provided on s 60I certificates is admissible.

[67] Ibid; Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), Rec 9, [8.2.2].

[68] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), Rec 9, [8.2.1]. In discussion on this point the Family Law Council referred to disclosures that had been made to FDR practitioners, however the Council’s recommendation was for amendment to s 10E, which relates to communications to family counsellors. Admissibility of communications to FDR practitioners is dealt with in s 10J. The Council’s reasoning, however, appears capable of applying to both ss 10E and 10J.

[69] Consultation Paper, Proposal 10–10.

[70] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Family Issues Committee; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010 (this stakeholder was of the view that the proposed amendment should be extended to all victims, not just children); Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010; Hunter Women’s Centre, Submission FV 79, 1 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Confidential, Submission FV 69, 2 June 2010; M Condon, Submission FV 45, 18 May 2010.

[71] Queensland Law Society, Submission FV 178, 25 June 2010; O Rundle, Submission FV 50 27 May 2010.

[72]National Peak Body for Safety and Protection of Parents and Children, Submission FV 47, 24 May 2010.

[73] Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Family Issues Committee; O Rundle, Submission FV 50 27 May 2010.

[74] Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Family Issues Committee.

[75] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010; Confidential, Submission FV 96, 2 June 2010.

[76] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[77] Under the CRP, cases involving children’s matters are allocated family consultants, who meet the parents (or carers) and children. Family consultants help parents focus on the children’s needs, and assist the Court and parents to achieve the best outcomes for children. As part of the CRP, family consultants undertake a comprehensive screening process; each party is asked specific questions about family violence, including questions about the frequency, pattern and type of violence and about children’s exposure to violence. Any communications and any admissions made at CRP meetings are admissible in any court proceedings under the Family Law Act: Australian Government Attorney-General’s Department, Towards a National Blueprint for the Family Law System (2009).

[78] D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010.

[79] Family Relationship Services Australia, Submission FV 231, 15 July 2010. See also, Ch 6, which considers the potential role of typologies of family violence in the law, including separation-instigated violence.

[80] J Stubbs, Submission FV 186, 25 June 2010. Another stakeholder suggested that admissibility of such disclosures should be limited to cases where adult victims of violence wished the evidence to be before the court and that adults should be able to state the effects on their children of exposure to violence, if recommended by a clinical psychologist: Confidential, Submission FV 162, 25 June 2010.

[81] National Legal Aid, Submission FV 232, 15 July 2010.

[82] Women’s Legal Services NSW, Submission FV 182, 25 June 2010. Women’s Legal Services NSW also commented that any increased disclosure and information sharing would require prior informed consent: ‘[t]he makers of disclosures must be fully informed of the consequences of disclosure and have control over how the information is used in family law proceedings.’

[83] Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Dispute Resolution Committee.

[84] G Charlton, Submission FV 240, 9 August 2010.

[85] Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010.

[86] See Ch 5 for a discussion of the effects of exposure of children to family violence.

[87] Consultation Paper, Question 10–15.

[88] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Ngaanyatjarra Pitjantjatjara Yankunytjatjara Women’s Council Domestic and Family Violence Service, Submission FV 117, 15 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 82, 2 June 2010; M Condon, Submission FV 45, 18 May 2010. The Women’s Legal Service Queensland indicated that such amendments should ‘probably’ be made: Women’s Legal Service Queensland, Submission FV 185, 25 June 2010. One stakeholder was of the view that written communications and possibly case notes, taken by the counsellor at the time the admissions were made, should be admissible: Confidential, Submission FV 96, 2 June 2010. Another stakeholder commented that family counsellors and FDR practitioners should be required to disclose such information: C Pragnell, Submission FV 70, 2 June 2010.

[89] Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010.

[90] Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Dispute Resolution Committee.

[91] J Stubbs, Submission FV 186, 25 June 2010.

[92] National Legal Aid, Submission FV 232, 15 July 2010.

[93] Section 60I certificates are discussed further, below.

[94] Consultation Paper, Question 10–16.

[95] In this case, the communications to the family counsellor were inadmissible due to s 64(2) of the Family Court Act 1997 (WA): Anglicare (WA) v Department of Family and Children’s Services (2000) 26 Fam LR 218.

[96]R v Liddy (No 2) (2001) 79 SASR 401, [24]–[26].

[97] Australian Government Attorney-General’s Department, Frequently Asked Questions: Family Dispute Resolution Practitioner Obligations (2009).

[98] Australian Government Attorney-General’s Department, Family Counsellors in the Family Law System (2007).

[99] Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Dispute Resolution Committee; Queensland Law Society, Submission FV 178, 25 June 2010. The Law Council of Australia indicated support for extending the exceptions in ss 10E and 10J to state and territory courts exercising family violence jurisdiction: Law Council of Australia, Submission FV 180, 25 June 2010. National Legal Aid was of the view that, in principle, any amendments to the confidentiality and admissibility provisions should also apply to state and territory courts when they are not exercising federal jurisdiction. In making this comment, however, National Legal Aid referred to its reservations with respect to amendments to admit disclosures about children’s exposure to family violence as suggested in Proposal 10–10 of the Commissions’ Consultation Paper: National Legal Aid, Submission FV 232, 15 July 2010.

[100]Law Society of New South Wales, Submission FV 205, 30 June 2010.