Family Court rules on counselling privilege

The Full Court of the Family Court has ruled on the scope of counselling privilege as set out in sections 10D and 10E of the Family Law Act. In broad terms, these provisions state that what is said in the type of counselling that is covered (broadly counselling in approved marriage guidance organisations) remains confidential and cannot be used in court proceedings.

In the recent case of Uniting Care and Harkess, the Uniting Church counselling arm argued that a subpoena should be set aside. The Church was successful.

Section 10D

Most of the case concerned sections 10D and 10E. Section 10D provided that what was said in counselling was confidential and could not be used in court, unless the parties taking part in counselling consent to the release of the information, in which case the counsellor “may” release the information. Section 10D(3) of the Family Law Act provides:

(3) A family counsellor may disclose a communication if consent to the disclosure is given by:
(a) if the person who made the communication is 18 or over–that person; or
(b) if the person who made the communication is a child under 18:
(i) each person who has parental responsibility (within the meaning of Part VII) for the child; or
(ii) a court.(emphasis added)

The difficulty for the Uniting Church was that both parties consented to the release of the information. The Uniting Church argued that “may” meant “may” not “must“: in other words even if both parties agreed to the release of information, then there was still a discretion on the part of the counsellor to release information. The Church was successful.

The Full Court found that “may” meant “may“, stating:

Section 10D of the Act creates and defines the privilege attaching to communications made to a family counsellor in the conduct of family counselling, and articulates the circumstances in which that privilege may, or must be waived. Given the absence of legislative constraint upon the persons or entities to whom, or to which disclosed communications may be published, failure to observe the legislative imperatives of s 10D could have quite unintended consequences, and potentially adverse implications for the welfare of children referred to in, or connected with such communications.

The Federal Magistrate, in making the order for the production of documents, sought to rely on section 10D(3)(b). The Full Court disapproved:

To the extent that the learned Federal Magistrate purported to rely upon s 10D(3)(b), with respect to him, the facts of this case reveal that it could not be enlivened. The reference to “a court” in s 10D(3) refers only to communications made by “a child under 18”, and not to the parties to the marriage in this case. Section 10D(3)(a) does not refer to, or invoke the intervention of “a court”. That cannot have been inadvertent. If the legislative intention had been that a Court could override the wishes of the adults falling within s 10D(3)(a), or the family counsellor, it would have so provided in the legislation.(emphasis added)

Section 69ZX

This section of the Family Law Act allows the court to seek the production of documents. It was argued that this section overrode section 10D and therefore required the production of the documents. The Full Court rejected that approach:

55. The Court is not persuaded that s 69ZX purports to empower the Court to require the production of documents in the circumstances of this case. If it does, then it could not in the Court’s view override the clear expressed terms of s 10D of the Act.
56. The Court is not persuaded that the provisions of s 69ZX are inconsistent and irreconcilable with the provisions of s 10D. As their terms make clear, the sections are directed to quite different issues. Section 69ZX suggests how powers created by other provisions of Part VII might be exercised, rather than conferring powers. However, to the extent that the provisions are, or may be, inconsistent and/or irreconcilable, the presumption that the general provisions of s 69ZX should “give way” to the specific provisions of s 10D should be applied.

Section 10E

This section is familiar to those like me who were familiar with the old section 19N- it in effect reenacts that section. The Full Court referred to the explanatory memorandum, which clearly refers to the effect of section 10E in also applying to State courts:

502. Currently, the admissibility into evidence of communications and admissions made in family and child counselling and family and child mediation, or in a professional consultation pursuant to a referral by a family and child counsellor or family and child mediator, is addressed by section 19N of the Act.
503. Section 10E largely recreates section 19N, to the extent that that section relates to family counsellors. Subsection 10E(1) provides that a communication made in family counselling is not admissible in any court or proceedings, in any jurisdiction.
504. Subsection 10E(1) also provides that a communication made when a professional consultation is being carried out on referral from a family counsellor is also inadmissible in any court or proceedings, in any jurisdiction. In order to ensure that professionals to whom family counsellors make referrals are aware of the inadmissible status of communications made to them, subsection 10E(4) requires the family counsellor to inform them of this fact when making a referral.(emphasis added)

The Full Court accepted that the scope of section 10E applied to “all courts”:

The terms of ss 10E(1) and (2) are instructive. It is clear that, unless, and even then only in the circumstances there referred to, admissions or disclosures were made in the terms referred to in s 10E(2)(a) or (b), there is an absolute prohibition, in all courts, on the admissibility of evidence of “anything said, or any admission made, by or in the company of”, in this case, a family counsellor conducting family counselling.(emphasis added)