22.1 Under the Family Law Act 1975 (Cth), information obtained during family dispute resolution (FDR) and family counselling[1] is confidential and inadmissible in court proceedings, although there are exceptions.[2]

22.2 The exceptions to the confidentiality of such communications include where the FDR practitioner or family counsellor[3] reasonably believes disclosure is necessary for a range of purposes relevant to family violence, including:

  • protecting a child from the risk of harm;

  • preventing or lessening a serious and imminent threat to the life or health of a person;

  • reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person;

  • preventing or lessening a serious and imminent threat to the property of a person;

  • 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

  • assisting an independent children’s lawyer to represent a child’s interests.[4]

22.3 The exceptions to the inadmissibility of such communications include admissions or disclosures that indicate child abuse or a risk of child abuse,[5] and information that it is necessary for an FDR practitioner to give on a s 60I certificate.[6] There are also obligations on FDR practitioners and family counsellors to notify child protection authorities in cases of actual or suspected child abuse.[7] The confidentiality and inadmissibility provisions in ss 10D, 10E, 10H and 10J of the Family Law Act are discussed further below.

22.4 In addition to the exceptions to the confidentiality and admissibility provisions, the Family Law Act allows FDR practitioners to communicate limited information to the courts, through s 60I certificates, to verify that FDR was considered to be inappropriate or was unsuccessful. The potential—and limitations—of s 60I certificates as a means of communicating information about family violence to the courts is discussed further below.

22.5 The confidentiality and inadmissibility of FDR communications are important for a number of reasons. If disputes are to be resolved effectively, there is a need for candour by the parties. Importantly, parties may opt for FDR processes precisely because they know that their communications will be protected. Parties need to be able to trust the FDR practitioner to respect their confidences, including when one party meets privately with a practitioner. If parties know that their communications will not be protected from disclosure or from use in potential subsequent litigation, they may be discouraged from speaking openly and honestly and from divulging relevant information.

22.6 On the other hand, knowing that FDR communications are confidential and inadmissible may deter parties from entering FDR as a ‘fishing expedition’ for information that can be used in subsequent litigation, rather than with the intention of making a genuine effort to resolve their dispute.[8] The absence of legal safeguards in non court processes such as FDR is also relevant.[9] Parties disclosing information without legal advice and representation, for example, may prejudice their position.

22.7 The confidentiality and inadmissibility of family counselling communications are also important. Clients who attend counselling trust that their sensitive information will not be passed on without their consent. Disclosure of sensitive information by counsellors could detrimentally affect the counselling relationship and undermine the benefits of counselling.

22.8 The confidentiality and inadmissibility of FDR and family counselling communications do, however, limit the availability of information to the courts and other agencies dealing with matters involving family violence. Confidentiality may also inhibit the development of important collaborative relationships between different participants within the family law system. A 2009 report of the Australian Institute of Family Studies suggested that communication of disclosures made in FDR processes may allow greater coordination where matters move between different parts of the system:

Currently, much relevant information may be collected by relationship service professionals in screening and assessment processes, but this information is not transmissible between professionals in this sector and professionals in the legal sector, or between other agencies and services responsible for providing assistance. Effectively, families who move from one part of the system to the other often have to start all over again. For families already under stress as a result of family violence, safety concerns and other complex issues, this may delay resolution and compound disadvantages.[10]

22.9 In addition to being relevant to different participants in the family law system, communications to family counsellors and FDR practitioners may also be relevant to family violence and child protection matters being dealt with by state and territory agencies and courts exercising child protection and family violence jurisdiction. The extent to which legislative provisions facilitate the sharing of FDR and family counselling communications with state and territory courts and agencies may have important implications for the development of collaborative relationships across legal systems and jurisdictions and the ability of the responsible participants in these different areas to respond appropriately to family violence.

22.10 Previous reviews have recognised that limitations on the courts’ access to information about family violence may have an impact on safety and have suggested that the Australian Government consider amending the provisions in the Family Law Act dealing with confidentiality, inadmissibility and s 60I certificates to ensure that information from family counselling and FDR, which is relevant to assessing risks of family violence and the making of appropriate parenting orders, is made available to the family courts.[11] The federal Attorney-General, the Hon Robert McClelland MP, has also asked the National Alternative Dispute Resolution Advisory Council (NADRAC) to report on legislative changes required to protect the integrity of different ADR processes. As part of its inquiry, NADRAC is considering confidentiality, and non-admissibility of FDR communications.[12]

22.11 In the Consultation Paper, the Commissions asked questions and made proposals for changes to the confidentiality and admissibility provisions in ss 10D, 10E, 10H, and 10J of the Family Law Act and to s 60I certificates to facilitate greater disclosure and information sharing by FDR practitioners and family counsellors.[13]

22.12 This chapter examines the balancing of different considerations: the need to make information and evidence available to relevant agencies and courts so that they can better protect victims or persons at risk of family violence, and the need to protect the confidentiality and limit the admissibility of FDR and family counselling communications so that FDR and family counselling processes are not compromised in their ability to secure better and safer outcomes for family violence victims and those at risk.

22.13 The following three sections of this chapter consider whether there should be additional exceptions in ss 10D, 10E, 10H and 10J to the confidentiality and inadmissibility of family counselling and FDR communications, and whether s 60I certificates should include additional information about family violence.

[1] ‘Family counselling’ is defined in s 10B of the Family Law Act 1975 (Cth).

[2] Ibid ss 10D, 10E, 10H, 10J. Sections 10E and 10J also apply to 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).

[3] Family counsellors are described in Ibid s 10C.

[4] Ibid ss 10D(4), 10H(4).

[5] Ibid ss 10(E)(2), 10(J)(2).

[6]Family Law Act 1975 (Cth) s 10J(3).

[7] Ibid s 67ZA(2). See also ss 67ZB and 111CV. Section 67ZA(3) of the Family Law Act permits (but does not require) disclosure of information by FDR practitioners and family counsellors on the grounds of reasonable suspicion of past or future risk of ill-treatment of a child and past or future risk of exposure or subjection of a child to psychologically harmful behaviour. State and territory legislation also impose obligations on FDR practitioners and family counsellors to notify child protection authorities where certain child protection concerns are raised. Mandatory reporting provisions are discussed further in Ch 20, and below.

[8] H Astor and C Chinkin, Dispute Resolution in Australia (2002), 178.

[9] M Prigoff, ‘Toward Candor or Chaos: The Case of Confidentiality in Mediation’ (1988) 12 Seton Hall Legislative Journal 1.

[10] Australian Institute of Family Studies, Evaluation of the 2006 Family Law Reforms (2009), 367.

[11] See R Chisholm, Family Courts Violence Review (2009) and 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).

[12] NADRAC is due to report to the Attorney-General by 30 November 2010. Given the timetable for the Commissions’ Inquiry, the Commissions were not able to consider NADRAC’s recommendations with respect to these matters. See R McClelland (Attorney-General), Integrity of ADR Processes: Terms of Reference to the National Dispute Resolution Advisory Council (2009).

[13] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Proposals 10–7, 10–8, 10–9, 10–10 and Questions 10–12, 10–13, 10–14, 10–15, 10–16.