Confidentiality and Admissibility in the Family Law Systemgreatersydney.flpn.com.au/wp-content/uploads/sites/... · Fiona Hollier, CEO of LEADR, opened the Forum by encouraging participants

A FORUM BY GREATER SYDNEY FAMILY LAW PATHWAYS NETWORK

Confidentiality and Admissibility in the Family Law Systemshared values and competing interests

Confidentiality and Admissibility in the Family Law System

A FORUM BY GREATER SYDNEY FAMILY LAW PATHWAYS NETWORK

Confidentiality and Admissibility in the Family Law System

by Marilyn ScottSeptember 2012

shared values and competing interests

For further information contact:Jenny DawsonProject OfficerGreater Sydney Family Law Pathways NetworkPO Box 285 CARINGBAH NSW [email protected]

Marilyn ScottHead of Dispute Resolution ProgramFaculty of LawUniversity of Technology, SydneyPO Box 123BROADWAY NSW [email protected]

Confidentiality and Admissibility in the Family Law System: shared values and competing interestsA Study by Greater Sydney Family Law Pathways Networkby Marilyn Scott and Michelle Whitehead

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mailto:[email protected]

AcknowledgementsThe Greater Sydney Family Law Pathways Network thanks keynote speakers Clive Price and Jeff Marhinin, and also Fiona Hollier for her generous time and the use of her facilities.

The author wishes to acknowledge the contribution of the commissioning committee in the scoping of the forum and provision of information.

The members of the commissioning committee from Greater Sydney Family Law Pathways Network were: Andrew Spaulding (UnitingCare Unifam, Manager Sydney CBD Office); John Carroll (Anglicare - Professional Practice Coordinator, Counselling and Relationship Services); Julie Dale (Interrelate Family Centres, Greater Sydney Area Manager); Margie Martin (Marrickville Legal Centre, Solicitor); Paul Lewis (Solicitor and Law Society representative); Rebecca Burnett-Smith (CentaCare Broken Bay, FDR Coordinator, Northern Sydney); Sylvia Sant (Anglicare, Manager - Parramatta Child, Youth & Family Services).

My thanks also go to Michelle Whitehead, Alexandra Harland, Rebecca Burnett-Smith and Paul Lewis whose able assistance has brought this project together.

Funded by the Australian Government, the Greater Sydney Family Law Pathways Network is a coordinated network of service providers operating within the broader Family Law system in the Greater Sydney region. The aim of the Network is to foster dialogue and collaboration between organisations with a view to helping separated families access services. By encouraging collaborative referrals and enhancing the understanding of available services, the Network represents an essential component of the Government’s commitment to an accessible Justice System that meets the needs of all families in Australia.

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Contents

vi

INTRODUCTION1

3

6

10

NAMING THE ISSUES15

PRESENTATIONSPractical Background and Perspective ~ Part 1Figure1 Distribution Sense of Where Family Matters Get ResolvedPractical Background and Perspective ~ Part 2

FEEDBACK FROM WORKING GROUPSSafety and Protection in the Family Law ArenaInformation Exchange in Family Law: who, what and why?Process of FDR – when does it begin in the eyes of Family Law and what does this mean?Collaboration in the Family Law Arena

16 171921

23

25

26

27

CONCLUSION

ANNEXURE 1UnitingCare Unifam Counselling and Mediation Subpoena Template

CONTACT

vii

This Forum was convened with the aim of investigating ways in which information arising from family law related counselling sessions might be shared in the context of family law proceedings, without compromising the integrity and confidentiality of the counselling relationship. This is a contentious topic which has been discussed at a number of Roadshows and other conferences without reaching any clear or satisfactory resolution.

Introduction

1 Confidentiality and Admissibility in the Family Law System ~ Introduction

VENUE

The forum was held at LEADR in Sydney on 18 November 2011

Fiona Hollier, CEO of LEADR, opened the Forum by encouraging participants to properly explore the issues from all perspectives before reacting with solutions. She emphasised the importance of understanding the pressures at both ends of the spectrum, bearing in mind the Family Court’s need to have access to good information in order to make effective parenting orders as well as the need for Family Dispute Resolution (“FDR”) agencies to maintain confidentiality in their processes.

A number of groups were identified as stakeholders with a legitimate interest in the subject under discussion. These included:

• Children, mothers and fathers• Couples, both heterosexual and same sex• Counsellors• Child consultants• Independent Children’s Lawyers (ICLs) • Family & Community Services (FaCS)• Children’s Contact Services (CCS)• NSW Children’s Commission• Family Dispute Resolution Practitioners (FDRPs) particularly mediators• Lawyers, the Law Society, and the NSW Bar Association• Court personnel, including magistrates, judges, and family consultants• Culturally and Linguistically Diverse Communities (CALD)• Aboriginal and Torres Strait Islanders Communities (ATSI)• Community Based Organisations (CBOs)

It is noted that Family Counselling and Family Dispute Resolution are different services with different definitions under the Act.

Two presentations were given, the first from a Community Services background and the second from a legal perspective. Each presentation was followed by an opportunity for discussion and the formulation of options to further investigate the identified difficulties. The proceedings of the Forum are reported in more detail below.

2Confidentiality and Admissibility in the Family Law System ~ Introduction

Practical Background and Perspective, Part 1:

Presentations

Presentation by Clive Price Executive Director UnitingCare Unifam Counselling & Mediation

Clive Price spoke of Unifam’s considerable experience over the last 18 years in handling subpoenas from the court to his organisation, a provider of family counselling services. He stated that, although some cases had required legal representation to contest the subpoena, in all cases the subpoenas had been withdrawn. Despite this, Unifam still receives approximately two subpoenas per week.

In the recent and well-publicised case of UnitingCare - Unifam Counselling & Mediation & Harkiss and Anor [2011] FamCAFC 159, the Family Court set aside a subpoena seeking the production of counselling notes, despite both client parties having given their consent. Unifam successfully submitted that such documents were protected and not compellable under sections 10D, 10E and 69ZX of the Family Law Act 1975 (Cth) (“Family Law Act”).

3 Confidentiality and Admissibility in the Family Law System ~ Presentations

Under these provisions, there is a limited exception encompassing any documents in the file which are unrelated to “a communication made to the Counsellor whilst the Counsellor is conducting family counselling” such as a letter from a party refusing to attend counselling, or arrangements for appointments. A further exception applies to any document recording an admission or disclosure of child abuse, or a child at risk of abuse, unless there is sufficient evidence available from other sources. The primary impact of Justice Coleman’s decision was that, apart from their mandatory reporting obligations, Family Counsellors have a discretion whether to disclose confidential communications even where the parties consent to that disclosure.

The question arises, if both sides consent to the disclosure of the information, what is being protected by resisting the subpoena? It is the general practice of Unifam and most other community organisations to share relevant information with ICLs when it is felt that this will help them achieve what is in the best interest of the child. However, such material should not, under the Family Law Act, be used as evidence. It is necessary to respect the integrity of Family Counselling providers in order to maintain their effectiveness. There is an ongoing need to protect confidentiality so that clients have a safe place to discuss and work through their personal issues and vulnerabilities without fear that this information will be shared with the court, unless the exceptions outlined above apply.

An ongoing tension exists between the importance of maintaining the confidentiality of the counselling process, and the need for the courts to have relevant information. These issues are explored in Richard Chisholm’s latest report, Confidentiality and Information-Sharing In Family Law Dispute Resolution: Aspects Of Current Law, Policies And Options,1 which supports the view that “what happens in Counselling and FDR is inadmissible, with important exceptions.” Counsellors in general agree that where the safety and welfare of a child is at stake, disclosure should override confidentiality.

1 Unpublished. Prepared as a resource document for participants at the 2011 FRSA Conference.

Part 1Presentations

4Confidentiality and Admissibility in the Family Law System ~ Presentations

Clive Price further rejects the notion that organisations tend to resist subpoenas on the grounds that their staff are not prepared to give evidence or did not keep adequate case notes. In his experience, Counsellors generally write up their notes cogently, appropriately and respectfully. However, other counsellors later stated that there was a fear they would keep minimal notes if there was a chance of them being subpoenaed.

This of course would not be best practice.The issue of confidentiality is seen by some to be an all or nothing issue,

based on the contention that to water down the notion of confidentiality would be to put at risk the assistance given by counselling services to the vast majority of families, for whom confidentiality is a crucial element of the process.

Other participants, including Rebecca Burnett-Smith, Co-ordinator of the Family Dispute Resolution and Mediation Service, Centacare Broken Bay, expressed concerns that these views could polarise the debate and noted that there are already important exceptions to confidentiality in the legislation. Rather than a narrow focus on confidentiality or information-sharing, there is a need for discussion about how we can widen the provisions for sharing information so that judges and magistrates are in a position to make good decisions about the welfare of children, with the information being shared in such a way that no-one is put at greater risk, and the process itself isn’t compromised unduly.

Clive introduced a diagram, in Figure 1, which illustrated how relatively few cases end up in front of a Judge or Federal Magistrate in the Family Law Courts compared with those families who resolved their issues away from court. Lawyers as well as community organisations are often involved in the resolution of these matters which do not go to court. Families attempting to deal with their disputes outside the legal system need to have a safe place to bring their concerns to light.


Figure 1: Clive’s Distribution Sense of Where Family Matters Get Resolved

Part 1Presentations


Another difficulty arising from the interaction between the legal system and the community organisations is that the Department of Family and Community Services (FaCS) may decline to investigate situations where it is known that the Family Law Courts or other community organisations are involved. This also applies to the approximately 50% of disputes where the parties are issued a certificate under s60 I of the Family Law Act which do not proceed to court.

One feasible option is to increase the availability of family consultants in the court who are able to offer admissible (forensic) counselling. The problem with this suggestion is the lack of available funding. Another option is to promote more communication with ICLs where there are clear concerns about the safety and well-being of children but no actual evidence. It is suggested that there is currently an alienation between the Family Law courts and the Child Protection system, and that an atmosphere of greater trust would assist the courts to fulfil their role of protecting the best interests of the child. A lack of resources may be a contributing factor in isolating the social and legal services from each other.

However, there is also a danger in assuming that all participants in the process are on the same side and working for the same outcome. Lawyers, for example, have a mandatory duty to represent the best interests of their individual clients, and the clients themselves are likely to have conflicting views on what constitutes the best for their children. There is a need to respect the independent nature of counselling and not allow it to be treated as a pool for collecting legal evidence.


Emerging Themes

In the discussion following this presentation, participants identified and at times briefly debated the following themes:

The nature of FDR• the need for FDR to remain a safe place for families to resolve their disputes

outside the legal system;• the question of when FDR starts, as this marks the point at which information

becomes inadmissible under the current Family Law Act;• consideration of the possibility that families may still talk with FDRPs if the

exceptions to disclosure are broadened, and• the problematic cross-jurisdictional issues that may arise

(a topic flagged as requiring deeper discussion): • power dynamics between the parties;• power dynamics between the systems;• the need for Family and Community Services to continue developing

an information sharing regime (this is in line with the Keeping Them Safe reforms introduced in 2009, which aimed to relax the boundaries for agencies to exchange information on clients, who often access many agencies simultaneously), and

• potential indiscretions committed by professionals who sometimes believe that it is inappropriate to share broad information and impressions.

Part 1Presentations


• the gap (lack of understanding / coordination) between Child Protection services and the Family Law Courts;

• the rise in the number of subpoenas instigated by ICLs, who tend to be used as a key resource by those working with children, and

• the input which ICLs could provide.

• the lack of trust that sometimes appears to exist between community organisations and Family Law Courts;

• the rise in the number of subpoenas being sought under the Family Law Act provisions relating to domestic violence, and the arguments for and against their rebuttal;

• issues of nuance and subtlety in terms of what information is being sought by subpoenas;

• the rise in the number of subpoenas directed to counselling services rather than FDR services, and the issue of gender differences as a possible explanation, and

• the exercise of discretion when both parties consent to the disclosure of their file.

The interaction between FDR and the Legal System

The best interests of children

Options to improve the current situation• addressing the lack of resources available to FaCS;• increased collaboration between the legal system and the community

organisations, and• the option for FDRPs and Counsellors to provide independent reports, as

opposed to their files being subpoenaed.


Practical Background and Perspective, Part 2: Presentation by Jeff Marhinin Special Counsel to Armstrong Legal (formerly a Partner of Watts McCray)

Jeff Marhinin was the solicitor who successfully represented Unifam in UnitingCare - Unifam Counselling & Mediation & Harkiss and Anor [2011] FamCAFC 159. In his professional opinion, the 2006 amendments to the Family Law Act were wisely and deliberately drafted. He praised the Chisholm Report and collaborative efforts such as this forum, pointing out the need for more extensive dialogue between professionals across the family law related sectors.

Part 2Presentations


Under s131 of the Evidence Act 1995 (NSW), facts gathered during negotiations to settle a dispute are not admissible, although s131(2) provides exceptions to this rule where both parties consent to the evidence being adduced in the proceeding. This legislative provision co-exists with s10D of the Family Law Act which states that a Family Counsellor must not disclose information gained in the course of conducting family counselling unless required or authorised by an exemption, and s10E which provides that anything said by or in the presence of a Family Counsellor is not admissible in evidence. Under ss10H and 10J, the same rules apply to FDRPs.

Section 10D was discussed in detail and concerns were raised by participants about when FDR begins and ends, and particularly about whether the intake process is included in FDR. Section 10D(1) and (2) contain mandatory confidentiality and reporting obligations for counsellors, using the word “must”, while ss10D(3) and (4) use the word “may” to create discretionary exceptions where the parties consent to the disclosure, or where disclosure is believed to be reasonably necessary to prevent harm or the risk of harm. Subsection 10D(4)(f) contains a little known exception which allows counsellors to voluntarily share information with ICLs, to assist them in properly representing the best interests of a child.

Subsection 10D(4)(f) thus requires counsellors to distinguish between useful information and inadmissible information as two separate issues. There is potential for counsellors to be a useful source of information, able to assist the ICL in terms of where to look for evidence and what issues should be addressed in, for example, an expert report, without this shared information being directly used in evidence against the clients.


Exchanges directly giving rise to concerns about a child’s safety, such as the exposure of a child to adult violence, fall within the mandatory exception provisions and are admissible in the proceedings. Disclosures of adult violence affecting the child only indirectly, such as threats or actual abuse of one parent toward the other where the child is not directly exposed, will not be admissible. However, a counsellor is able to make such disclosures to an ICL, who is then free to forward any concerns communicated to them by counsellors or FDRPs (for example, a perception that one parent may be alienating a child from another parent) to a family court consultant who may use this information to further test their own hypotheses about what the child is experiencing.

Parliament provides publicly available Explanatory Memoranda which explain the aim and operation of an Act. The Explanatory Memorandum to the recent Family Law Legislation Amendment (Family Violence And Other Measures) Bill 2011, for example, provides among other things the rationale for introducing the new subsection 4AB(3) to the Family Law Act. This subsection defines the term ‘exposed’ and provides “a non-exhaustive list of example situations where a child may be exposed to family violence.” In this way the legislature attempts to overcome ambiguities in the wording of legislation.

To a large extent, counselling and FDR constitute processes other than judicial ones. Although the nature and processes of client intake vary across service providers, clients usually divulge a personal history of their relationships in the intake process. Regulation 28 of the Family Law (Family Dispute Resolution Practitioners) Regulations 2008 (Cth) requires an FDRP to provide the parties with information about the confidentiality provisions in the Family Law Act at the intake and assessment stage. However, regulation 25 states that an FDRP must have assessed the parties and be satisfied that the dispute is appropriate for FDR before providing FDR under the Family Law Act. Since the confidentiality provisions in ss10H and 10J of the Family Law Act apply to an FDRP conducting FDR, regulation 25 implicitly takes the intake / assessment process outside the confidentiality provisions. The Family Law Act does not explicitly state whether information gathered at intake from clients seeking FDR services is admissible or not. This can be seen as a problematic technical gap that exists within the Act.

Part 2Presentations


There is great variability in terms of how private sector and community organisations typically treat these issues, and more information is needed in this area. In principle, subpoenas should add to the evidence of a case. A subpoena must therefore demonstrate a legitimate forensic purpose. If it does not, the issuer may not have fully understood this principle. If the evidence sought cannot be admitted, then there is no purpose in sending the subpoena. In such cases, FDRPs, Counsellors and their representatives (for example, managers) should consider negotiating with the issuer to see if an agreement can be made on what would be considered forensic material so that legitimate forensic material may then be communicated to the issuer. A subpoena template prepared by Watts McCray Lawyers and 2Anne Rees SC (as she then was) on behalf of UnitingCare Unifam is annexed to this report.

Alexandra Harland, a Lawyer from Legal Aid NSW, asked Jeff Marhinin to further explain the rationale for not wanting to forfeit files when both parties consent. He shared his belief that forfeiting such files could unknowingly lead to further dispute and that this practice would add to the adversarial process. In UnitingCare - Unifam Counselling & Mediation & Harkiss and Anor [2011] FamCAFC 159, one party was claiming that the other party admitted in couples therapy to having been abusive and the other party denied that such an admission was made. Federal Magistrate Altobelli, in the initial ruling, wanted to take a look at the file as an indication or evidence of who was the more credible party.

This placed the court in the role of second-guessing Unifam. Since Counsellors and FDRPs have mandatory reporting obligations, it would be reasonably expected that Unifam would have reported abuse if there was an indication of admissible violence in the file. Clive Price again asserted that Unifam, as well as FDRPs and Counsellors in general, go to great efforts to ensure the safety of children and women.

2 Anne Rees SC is now The Honourable Justice Anne Rees of the Family Court of Australia.


The presentation closed with a discussion of the issue of intimidation and how intimidation may add further ambiguity to the difficult task of clearly defining what constitutes domestic violence and child abuse. Domestic Violence Services have recently begun to advocate in favour of FDR within the context of a Pilot project run by Unifam and Interrelate, called Coordinated FDR. This program offers FDR to families where domestic violence has occurred and where the alleged perpetrators have taken some responsibility for the abuse.

Part 2PresentationsPart 2Presentations


Following the presentations, the participants identified the following themes and issues for further discussion:

1. Safety and Protection in the Family Law Arena.

2. Information Exchange in Family Law?• Should there be a shift in the powers of the court, from an adversarial process

to an inquisitorial one?• Who should control access to information?

• Child Protection – how do you get information to the courts?• The need for protection of vulnerable adults.• Mental Health issues.

• when does FDR begin in the eyes of Family Law and what does this mean?

Naming the Issues

3. Process of FDR

4. Collaboration in the Family Law Arena• The need for collaboration and education between service providers, courts

and lawyers.• The need for an increase in relationships/communication between ICLs and

other organisations.

15 Confidentiality and Admissibility in the Family Law System ~ Naming the Issues

Feedback From Working GroupsIn the afternoon session, the participants separated into four working groups to explore the categories outlined above. A summary of the discussions from these groups is provided below:

16Confidentiality and Admissibility in the Family Law System ~ Naming the Issues

Safety and Protection in the Family Law ArenaAmongst the concerns identified by this group was a perceived lack of co-operation between the Family Court and FaCS. The participants expressed their concern that no-one from FaCS was present at the Forum.

Despite Parliament’s best intentions, the legislative provisions do not always protect vulnerable family members, and once families enter the Court system, the length of time taken to reach a decision may have the effect of prolonging the abuse. There is a perception that the Court lacks the resources to seek information from FaCS.

The presumption of equal shared responsibility between parents can reinforce the dynamics of domestic violence, although it is hoped that this will be remedied by the Family Law Legislation Amendment (Family Violence And Other Measures) Bill 2011. As it stands, the system is fragmented, with vulnerable clients having to deal with up to four different courts. The different parts of the legal framework operate in silos which are not effectively aligned to work together, even though all are based on the best interests of the child. In practice, therapeutic services for children are often compromised if a family is in the court system. There are also ethical questions regarding how to give children a voice in the proceedings, and whether “all at risk” children should be interviewed.

Another concern is the proliferation of various definitions of abuse. Definitions such as “risk of abuse”, “risk of harm” and “significant risk of harm” lack consistency and result in the application of different standards by different courts and agencies. The definition of family violence is similarly unclear. When information of concern is provided, unless it discloses a risk of significant harm or the matter is inappropriate for FDR, it is likely to go nowhere. This can include matters such as parental capacity, attachment issues, mental health issues and controlling or coercive behaviour.

17 Confidentiality and Admissibility in the Family Law System ~ Feedback from Working Groups

Options

The working group on ‘Safety and Protection in the Family Law Arena’ concluded by formulating the following options:

1. Get FaCS to the table.

2. Give more resources to the Magellan program.

3. Co-locate a FaCS officer at the Family Court (as is done in WA).

4. Have a method of flagging cases that go to Court which have child at risk, domestic violence or vulnerable party issues.

5. Work towards refining consistent definitions of abuse, issues of harm, and family violence across all jurisdictions.

6. Harmonise sections 10D and 10E of the Family Law Act.

7. Increase the role of ICLs by encouraging them to talk to FDRPs to get information, or ideas on where they may gather their evidence.

8. Educate lawyers and practitioners (and their organisations) about subpoenas and reports.

9. Provide legal education to lawyers about “no contact” cases and rebutting shared parental responsibility where appropriate.

18Confidentiality and Admissibility in the Family Law System ~ Feedback from Working Groups

This group began by asking whether reporting concerns about abuse was likely to make a client safer or increase their danger. There was a similar question about how to word a report to the Court to avoid getting a child informant into trouble. In such situations there may be a benefit in the accumulation of information, such as a child seeing a therapist and then being interviewed by a Court-based Family Consultant. When concerns are held, the presentation and timing of the information is critical, and should be based on a clear understanding of what information the judge needs to know, and when to supply it. A further question arose as to whether the information flow was one way only into the Court process.

Information Exchange in Family Law: who, what and why?


Options

Options developed by the working group on ‘Information Exchange in Family Law’ included the following:

1. There may be utility in a blanket prohibition on subpoenas addressed to Counsellors or FDRPs.

2. The provision of “screening” and “assessment” information from Counsellors or FDRPs to the Family Consultant at Court, so they can check that they haven’t missed anything.

3. Development of a standardised screening tool.

4. Instituting a mandatory request in all cases from the Court to FaCS for files and information.

5. Go back to non-reportable Family Court consultants. At the moment, a hybrid system exists, with one rule for Court personnel, and another for FDRPs and Counsellors outside of Court.


This group identified a tension between the clients and the Courts in terms of their expectations. The clients have an expectation of confidentiality from FDRPs/service providers whereas the lawyers want access to all information relevant to the adversarial process. The current system involves various agencies working in different ways and results in confusion for the clients with regard to confidentiality. Often, the most sensitive information is divulged during the intake and assessment process, which generally involves one-to-one sessions with an FDRP. The cautious recording of information at these early stages potentially prevents FDRPs from engaging in areas that their role would otherwise encompass. The role of FDRPs is to avoid the parties having to litigate, and where mediation fails, clients may feel confused, betrayed or let down by the process. Some counsellors stated that they deliberately kept very brief notes for fear of being subpoenaed.

The Family Law Act aims to give certainty regarding confidentiality of communications after a point in FDR. However, the legislation is not clear about exactly where that point is. This causes confusion for the clients, the social workers and the Court. In addition, different agencies have different models which may not be compatible, making the task of applying the legislation in practice more difficult. As a result of this lack of clarity, there is a tendency to consider anything and everything must remain confidential. This protectiveness is enhanced by a mood of uncertainty across the Family Law sector, with the participants of this group identifying some “fear” of collaboration and information sharing on the part of some stakeholders.

Process of FDR – when does it begin in the eyes of Family Law and what does this mean?


Options

The working group on the ‘Process of FDR’ presented the following options from their exploration of the issues:

1. The submission of reports and the promotion of discussions from various associations, including Family Relationships Services Australia, Mediation bodies, the Law Council, and the Attorney-General’s Department.

2. Proposed amendments to the Family Law Act:a. to provide an inclusive definition of FDR in s10F that provides more guidance

than “process”;b. to narrowly define FDR so that the definition provides certainty and

consistency; • to ensure the definition specifies the various steps or stages of FDR,

including intake/assessment • decision-making regarding appropriateness for FDR • the conduct of the FDR (including private sessions, telephone sessions and

shuttle sessions) • everything except the final parenting plan • s60 I Certificate

3. A letter to the Attorney-General requesting changes in the legislation and / or the regulations.

4. Other actions, for example increased education.

5. Preparation of a Discussion Paper summarising this Forum.

6. The identification of common ground areas that have been discussed at this Forum.


Collaboration in the Family Law ArenaThis group began by identifying the stakeholders in the Family Law Arena, including FDRPs, Family Relationship Centres, Counsellors, lawyers assisting in mediation, ICLs, Family Court Consultants, Federal Magistrates, and judges. Given this diversity of stakeholders there are bound to be limits of collaboration due to different protocols and different roles within the Family Law Arena. To collaborate successfully, it is necessary to be aware of these boundaries and to respect the differences between the stakeholders’ various roles. There is also currently a rise in the number and type of organisations trying to work differently to the established legal system, by offering a safe place for clients to disclose vulnerable personal information and issues. This coincides with a perception that information in subpoenaed files can put people at risk.

There are a number of ways in which the legal framework currently supports collaboration. Service providers can speak with ICLs, although both need to be clear about the permissible purposes of such communication. ICLs can speak to Family Court Consultants and can even consult on appropriate orders. The system encompasses legally assisted mediations, where a legal representative attends mediation with the client, and warm referrals, where another service is contacted on the client’s behalf and a report or case history may be provided. There are also the legislative exceptions to inadmissibility, including those aimed at ensuring the safety of children.

However, there are also many ways in which the legal framework currently does not support collaboration. ICLs do not always know that they can contact service providers for information. They may not know who those service providers are. There is a lack of clarity in the legislation about when the process of FDR begins, and a lack of understanding of purposes. For example, the purpose of issuing subpoenas is generally poorly understood, as is the definition and value of counselling. Overall, the various Family Law stakeholders lack understanding of each others roles. There is a need for more training in order to increase the recognition of different interests and their interactions. Different stakeholders also have different ethical obligations, which can lead to dilemmas and increase the tension between groups.

23 ~ Feedback from Working GroupsConfidentiality and Admissibility in the Family Law System

Options

The options generated by the working group on ‘Collaboration in the Family Law Arena’ are as follows:

1. There is a need for professionals across the relevant disciplines to get together and discuss issues in order to increase understanding, in a manner similar to this Forum.

2. For education to be effective, it needs to incorporate more than just lectures and papers, instead presenting scenarios and drilling down to expose the underlying issues and tensions.

3. It is desirable to construct mutually agreed upon practice directions, and to have these endorsed by the leading relevant professional bodies.

4. The promotion of cross-fertilisation of ideas between the various professional journals and disciplines.

5. The creation of a DVD illustrating how cross-discipline professionals can effectively work together.

6. Publication of a discussion paper in a journal such as The Family Law Review. Alexandra Harland is on the editorial board of the journal, and is willing to assist with this process.

7. Preparation of Collaboration Kits.

8. The implementation of joint projects which blend perspectives and which recognise and respect differences.

9. Inviting cross-disciplinary mixes, such as team/staff meetings.

10. Conducting cross-disciplinary visits to the premises of the Courts, Family Relationship Centres, Service Providers, Lawyers/ ICLs, Legal Aid, etc.

24 ~ Feedback from Working Groups

Summary notes were distributed to the Committee and participants and the Greater Sydney Family Law Pathways Network (GSFLPN) will keep participants advised of future developments.

Conclusion

As a result of this forum, GSFLPN has included in its planning for 2012-2013 a forum called Child Safety – Everyone’s Business which will focus on child protection issues raised in this paper.

The context of the forum will include better engagement, improved links and increased awareness between the various stakeholders mentioned in this paper.

25 Confidentiality and Admissibility in the Family Law System ~ Conclusion

Annexure 1

1. Originals or copies of all documents held by you recording an admission by insert relevant adult party name/s and dates of birth (being adults over the age of eighteen (18) years) that indicates that insert relevant subject child name/s and dates of birth has been abused or is at risk of abuse;

2. Originals or copies of all documents held by you recording a disclosure by insert relevant subject child name/s and dates of birth has been abused or is at risk of abuse;

3. Originals or copies of all documents held by you in relation to insert relevant adult party and subject child name/s and dates of birth which do not relate to a communication made to a Family Counsellor or Family Dispute Resolution Practitioner whilst the Family Counsellor and/or Family Dispute Resolution Practitioner was conducting Family Counselling or Family Dispute Resolution.

Prepared by Watts McCray Lawyers and Anne Rees SC on behalf of UnitingCare Unifam.

August 2011

Subpoena Template

26Confidentiality and Admissibility in the Family Law System ~ Conclusion

Jenny DawsonProject Officer

Contact

27 Confidentiality and Admissibility in the Family Law System ~ Contact

Confidentiality and Admissibility in the Family Law System ~ Contact

Confidentiality and Admissibility in the Family Law System ~ Contact

Documents

Confidentiality and Admissibility in the Family Law Systemgreatersydney.flpn.com.au/wp-content/uploads/sites/... · Fiona Hollier, CEO of LEADR, opened the Forum by encouraging participants