If you have ever participated in a mediation, you will know that one of the first comments by the mediator is that this Mediation is confidential and therefore admissions at mediation are not admissible in court.
This important rule solidifies the sanctity and privacy of the mediation process. Confidentiality makes the participants feel more comfortable that they can be vulnerable to one another during the mediation process, by making admissions as to where they may have done wrong, and it allows people to take responsibility for their needs, emotions and choices, without the fear that those admissions will be used against them in Court.
Confidentiality of Mediation / Counselling & the Exceptions
A Family Counsellor and a Family Dispute Resolution Practitioner (FDRP) must not disclose a communication made to the them while they are conducting family counselling & dispute resolution unless the disclosure is required or authorised by section 10D(1) & 10H(1) of the Family Law Act (FLA).
There is one exception whereby a Family Counsellor or a FDRP must disclose – if the FDRC reasonably believes the disclosure is necessary for the purpose of complying with a law of the Cth, state or territory: s10D(2) and 10H(2).
A Family Counsellor or FDRC may disclose a communication in the following circumstances:
- If consent to the disclosure is given by that person or if the person who made the communication is a child – the person who has parental responsibility for that person or the court: s10D(3) and s10H(3)
- If there is Risk, that is, if the practitioner reasonably believes that the disclosure is necessary for the purpose of:
- protecting a child from risk of harm;
- preventing/lessening serious & imminent threat to the life or health of a person;
- reporting the commission/preventing the likely commission of an offence involving violence or a threat of violence to a person;
- preventing/lessening a serious & imminent threat to the property of a person;
- reporting the commission/likely commission of an offence involving intentional damage to property of a person or threat of damage to property;
- If there is an ICL, to assist the ICL to represent a child’s interests under an s68L order: s10D(4) and 10H(4) FLA.
An FDRC may disclose info necessary for the practitioner to give a s 60I(8) certificate: s10H(6).
Notably, the sections state that evidence that would be inadmissible in court because of s 10E or s10J is not admissible because this section authorises/requires disclosure: s10D(6) & 10H(6). In other words, just because the practitioner is permitted to disclose an admission made at mediation because an exception applies, does not change the fact that the evidence of that admission is still inadmissible in court.
Admissibility of admissions at mediation in court proceedings
Section 10E(1) and 10J(1) of the Family Law Act state that evidence of anything said and any admission made by a person during family counselling/dispute resolution, or to a person to whom a family counsellor/FDRP refers a person during family counselling/dispute resolution is not admissible in family court proceedings: 10E(1) and 10J(1) FLA.
The only exceptions whereby admissions made at mediation/counselling are admissible in Court are where:
- An admission made by an adult that indicates a child under 18 has been abused / is at risk of abuse;
- Disclosure by a child under 18 that indicates that a child has been abused / is at risk of abuse: s10E(2) and 10J(2)
unless in the opinion of the court, there is sufficient evidence of the admission/disclosure available to the court from other sources.
Admissions at mediation about a child’s exposure to family violence
Disclosures made to a family counsellor / FDRC about a child’s exposure to family violence are, in accordance with s10E and s10J, inadmissible in court.
Stakeholders have made recommendations to the Australian Law Reform Commission to the affect that amendment should be made to the current restriction on admissibility in s10E and s10J such that admissions or disclosures of children’s exposure to family violence should be admissible, unless in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other resources.
This submission is supported by the fact exposure to family violence can have direct negative and serious effects on children. Further to this, there is a clear indication in research conducted by regulatory bodies that women have difficulties bringing evidence of family violence to court because family violence is often covert, behind closed doors, and that the lack of available evidence is one of the biggest hurdles in family law proceedings.
However, on the other side of the coin, if Family Counsellors / FDRC’s were to commence giving evidence of disclosures of family violence made during mediation, parties will be guarded about what they say during the process and FDRC practitioners will avoid being required to give evidence and being subjected to cross-examination. Drawing an FDRC into adversarial litigation processes and using largely untested claims of violence made in mediation, in subsequent litigation, may according to other stakeholders, reduce the effectiveness of mediation.
The Australian Law Reform Commission is of the view that having considered the arguments for and against, the arguments in favour of making disclosures of children’s exposure to family violence admissible do not outweigh the public interest in protecting the integrity and ability of mediation and family counselling to secure safe outcomes for victims of family violence.
What is your view?
When do the exceptions apply such that admissions at mediation / in family counselling may be used in court proceedings?
Despite the very limited exceptions where admissions made at mediation / family counselling are admissible in court, there are some circumstances where things said by a party to, for example, their family therapist/psych9logist in the course of counselling, may be held to be admissible.
In Choat & Grendel  FamCA 579, family counselling notes of the mother held to be admissible in part.
In Choat & Grendel the Full Court determined whether notes taken by a psychologist during counselling could be admitted into evidence in proceedings, or whether they were protected on the grounds of confidentiality and/or public interest immunity. Public interest immunity is a rule of evidence which restricts evidence being given in proceedings where the disclosure would be against the public interest.
The case involved a parenting application regarding a child 12 years of age. There were allegations of parental alienation as well as family violence against the father.
The Independent Children’s Lawyer issued a subpoena to the mother’s clinical psychologist for her counselling notes. Both the mother and her psychologist objected to providing the documents on the basis that the documents were confidential and attracted public interest immunity.
The Mother was concerned that the father would use the notes against her, outside of the court proceedings.
The Father sought to inspect the documents on the basis that the notes were relevant to the mother’s mental state.
The Family Court found that the documents were confidential but that did not mean they were not relevant or inadmissible. The Court said that a psychiatric/patient relationship does not attract public interest immunity but referred to recent cases holding that a therapeutic counselling relationship might attract public interest immunity if the release of notes might victimise a parent or affect their parenting capacity.
The court referred to the following cases in making a decision:
- Jermyn & Carling : The Court denied the Father’s application to subpoena the Mother’s counselling notes. The court noted it must balance the need for the best available evidence to be before the court against the desirability of allowing a person to pursue and receive therapeutic support and benefit from privileged and confidential counselling notes. In this case, the notes related to sexual abuse suffered by the applicant years prior to the relationship having commenced. The court found that there were other means by which evidence could be obtained about the applicant’s mental state (e.g. court appointed expert, GP, psychologist). The court had regard to the distress that would have been experienced by the applicant if her notes were subpoenaed and that the intrusion into her privacy would have affected her perception of her receiving a fair trial.
- Smith & Duke FamCA 990: The Court held that therapeutic counselling notes of the mother were not admissible into evidence. In this case, the parties engaged in therapeutic counselling after final parenting orders made with the counselling being intended to be confidential to aid smooth functioning of final orders. The psychologist providing the counselling was not a family counsellor within meaning of FLA thus the usual prohibition on admissibility of things said in counselling did not apply. However, the court found that the probative value of the evidence was low and that as a matter of public policy, where the parties agree to a process being confidential, it should stay that way, unless the possible advantage either to the child or to the proper administration of justice was significant.
Ultimately, the Court in Choat & Grendel took a narrow view of the scope of the public interest immunity as it applied to confidential psychologists notes, finding that the protection did not apply. However, part of the documents were found not to be relevant and objection to subpoena upheld on that basis and only part of the mother’s counselling notes were admissible in court.
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