Introduction
Family counselling is increasingly utilised by separated couples, often with the expectation that unresolved disputes will not lead to their statements being used in court. The Family Law Act 1975 restricts the disclosure of communications during family counselling, but this applies only to specific categories of approved family counsellors. However, even where your counsellor may not fall within one of those categories, disclosures made during counselling are unlikely to form part of the evidence in a family law dispute.
What is family counselling?
Family counselling aims to help family members improve communication and resolve conflicts, especially after separation, to establish suitable arrangements for their children and manage co-parenting relationships.
Depending on the ages of the children and the degree of parental conflict, the process may involve all family members attending sessions, either individually or at times jointly, with the assistance of an agreed counsellor.
Counsellors usually take detailed notes of the sessions for their records. Mandatory reporting obligations may apply if a parent or child makes certain disclosures during the counselling process e.g. if a child discloses that a parent may have committed an act of sexual abuse.
Who is a family counsellor?
In general terms, a family counsellor is a trained professional specialising in helping families resolve conflict. However, in Australia there are no specific qualification requirements for a person to refer to themselves as a counsellor. While counsellors typically have qualifications in fields like social work or psychology, anyone can claim to be a counsellor without specific qualifications.
What are the family law restrictions on disclosures made during counselling?
Section 10D of the Act stipulates that an approved family counsellor must not disclose communications made during family counselling, except if the disclosure is necessary to comply with a law or at the counsellor’s discretion under certain conditions. The exceptions to this are if the counsellor:
- believes the disclosure is necessary to comply with a law
- at their discretion wishes to make the disclosure, and certain other conditions are also satisfied.
‘Approved family counsellor’ has a specific definition under section 10C of the Act. It does not capture every family counsellor and is generally limited to counsellors:
- working at organisations approved by the Attorney-General’s Department (List of counselling organisations (updated 30 July 2024)
- authorised or engaged to act as a family counsellor by the Federal Circuit and Family Court of Australia e.g. an in-house counselling service provided by the Court.
The definition of ‘family counselling’ under section 10B of the Act is very broad and includes a family counsellor helping adults and children affected by a separation. It does not require a separation to be the main reason for the counselling.
What if your counsellor is not an approved family counsellor?
In our experience, family counsellors are generally loath for their file notes to be disclosed during contested court proceedings. Even if the strict disclosure restrictions in section 10D don’t apply, counsellors may still choose not to disclose notes.
Section 10E further restricts the admissibility of such communications as evidence in court. Therefore, even if a communication during family counselling could be disclosed, it may be inadmissible under that section and cannot be used as evidence in court proceedings.
We recommend discussing file note protocols with potential family counsellors before engagement. Some counsellors might take no notes, ensuring nothing is available if subpoenaed. Others may agree to provide non-reportable counselling, where session details are not documented for court use.
If you have any questions about family counselling and confidentiality, please do not hesitate to contact one of our experienced family lawyers.
