This webinar was hosted by the Child Family Community Australia (CFCA) information exchange and the Victorian Family Law Pathways Network, and took place on Wednesday 6 March 2013.
The webinar was presented by Professor Richard Chisholm AM and Federal Magistrate Grant Riethmuller. Francesca Gerner chaired the session.
We warmly invite you to submit questions for Professor Chisholm or Francesca Gerner in the ‘comments’ section below, and to share your thoughts, insights or concerns regarding the issues raised. Professor Chisholm and Francesca Gerner will respond to your questions as soon as they can.
A recording of the presentation will be made available on the CFCA website and Victorian Family Law Pathways Network wiki in the next few weeks. Please subscribe to our alert to be notified when this happens.
Webinar abstract
The confidentiality provisions in the Family Law Act raise a number of challenging issues for Family Counselling practitioners. Critically, it is important to know whether a process is “family counselling” due to these provisions, given the broad definition.
The webinar addressed the following questions: what constitutes family counselling? And how does this impact the work of practitioners? Are they providing “family counselling” under the Act?
Please submit your questions and comments below.
Hi
I found the webinar really interesting yesterday even though I missed the first half hour due to forgetting about daylight saving. I want to say that my organisation has been objecting to subpeonas based on the designated family counselling definition a number of times and these have been successful. Most of these have been around what I could call family counselling but a couple have been with domestic violence workers. Most of the time the solicitors are now withdrawing the subpeonas and we have not even had to lodge an objection.
a question I have is that the Act states that inadmissibility applies in any court so would that also include children’s court/.child protection matters where our records have no disclosures of abuse or harm to children?
Comment by Joanne Trentin — March 7, 2013 @ 4:35 pm
Much comment was made about family counsellors who are employed by a designated Agency. What are the implications for psychologists who are in private practice and who provide therapeutic counselling for families in accordance with Orders?
Comment by Winsome Thomas — March 9, 2013 @ 2:32 pm
Hi Joanne and Winsome,
Thank you for your comments and questions. Richard will respond very soon!
Best wishes,
Ken
Comment by Ken Knight — March 13, 2013 @ 11:19 am
Hello Joanne,
A good question! And, I’m sorry to say, the answer is not entirely obvious.
On the face of it yes, the inadmissibility provision, s 10E would include a children’s court, along with any other courts: see particularly paragraph (c), below:
S 10E (1) Evidence of anything said, or any admission made, by or in the company of:
(a) a family counsellor conducting family counselling; or
(b) […]
is not admissible:
(c) in any court (whether or not exercising federal jurisdiction); or […]
However there are at least two reasons why the answer might not be so simple. First, there could be a question whether there is a sound constitutional basis for the Family Law Act 1975 to limit evidence in other courts as s 10E purports to do.
Second, there might be an inconsistency between s 10E and s 69ZK, the section that says, roughly, that state and territory child protection laws generally prevail over the Family Law Act 1975. Section 69ZK says, in part:
(2) Nothing in this Act, […] affects:
(a) the jurisdiction of a court, or the power of an authority, under a child welfare law to make an order, or to take any other action, by which a child is placed under the care (however described) of a person under a child welfare law; or
(b) any such order made or action taken; or
(c) the operation of a child welfare law in relation to a child.
Arguably, by providing that the evidence can’t be admitted, s 10E “affects the jurisdiction” of the children’s courts under the child welfare laws; and arguably when the children’s court is admitting evidence, it is taking ‘any other action’. And maybe “the operation of a child welfare law” includes the children’s court considering whether to admit evidence. If any of this is correct, it is arguable that s 69ZK means that nothing in the Act, including s 10E, could prevent the children’s court from admitting evidence.
If there is an inconsistency between s 10E and s 69ZK, the question would then be which one prevails. I’d prefer not to express a firm view about these tricky issues without doing further research, but the answer might well be that s 69ZK prevails and, if so, the children’s court would be able to admit the evidence.
To sum up, I’d say, therefore, that broadly speaking:
Section 10E does appear to prevent the children’s court from admitting family counselling evidence; but it may well not have that effect, even if it is constitutionally valid, because another section, s 69ZK, indicates that section 10E was not meant to limit the children’s courts’ power to admit evidence.
Best wishes,
Richard
Comment by Richard Chisholm — March 14, 2013 @ 8:15 am
Hello Winsome,
This question takes us back to s 10E. The inadmissibility provision applies to evidence of anything said, or any admission made, not only by or in the company of a family counsellor conducting family counselling, but also by
(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.
If the psychologist in private practice carries out services on referral from a family counsellor, and thus falls within paragraph (b), then the inadmissibility rule applies to the psychologist just as it does to the family counsellor.
If not, the admissibility of the evidence would be governed by the general law. As explained in the paper, under the general law it would normally be admissible, unless – as might often be the case – it is part of the parties’ attempts to negotiate settlement of a legal dispute, in which case it might be inadmissible under s 131 of the Evidence Act 1995 (Cth).
Best wishes,
Richard
Please note: These answers are not based on detailed research, and are not intended as legal advice. Anyone confronted with legal issues relating to these matters might need to seek legal advice from an appropriate source.
Comment by Richard Chisholm — March 14, 2013 @ 8:20 am
Hi Richard
Thankyou very much for your answer – it is very helpful.
Kind Regards
Joanne
Comment by Joanne Trentin — March 19, 2013 @ 11:52 am