SENSEANDSENSITIVITY: THERAPEUTIC RECORDS IN FAMILY LAW PROCEEDINGS
Carolyn Jones is a senior solicitor at Women’s Legal Service NSW.
By Carolyn Jones
R ecords of therapeutic interventions, such as counselling or psychiatric assessment, may be useful evidence in litigation. However, accessing these records can cause significant harm, particularly for victims of family violence and sexual assault. In the current climate of unprecedented focus on family violence it is essential that legal practitioners and the judiciary consider the unintended consequences of accessing such records in family law proceedings. Statutory protection of therapeutic records Certain sensitive records in NSW have explicit statutory protections. This includes the sexual assault communications privilege, which was introduced into the Evidence Act 1995 (NSW), in section 126H, almost 20 years ago when the potential for harm arising from the issue of subpoenas for sexual assault counselling records was recognised. The NSW Evidence Act also includes a professional confidential relationship privilege in section 126B. There are also protections of confidentiality and inadmissibility for certain communications under the Family Law Act 1975 (Cth) (‘ the Act ’). These include communications made to family counsellors and family dispute resolution practitioners (‘ FDRP’ ) while family counselling or family dispute resolution (‘ FDR’ ) is being conducted. FDR is a mediation process to assist people to resolve disputes arising out of separation or divorce facilitated by an accredited FDRP. Family counselling is a process to assist people to deal with personal and interpersonal issues and/ or issues relating to the care of children arising from marriage, separation or divorce and is facilitated by an accredited family counsellor. Unfortunately, the existence of these statutory provisions in the Act does not guarantee a simple application of the protections. The family courts have been challenged to determine when
at risk of further violence or secondary victimisation. The Act does not make this easy. In addition to the difficulties that can arise in distinguishing intake processes from the provision of FDR or family counselling, there are other considerations to keep in mind. Under the Act, records of contact with a family counsellor providing family counselling will be confidential. However, if a client discloses the same thing to a counsellor who is not providing family counselling, those records can be subpoenaed and may be admitted into evidence, unless the client was referred to that counsellor by a FDRP. In certain circumstances, a FDRP can disclose information, such as a threat to kill the other parent, but this information family counselling records will not be admissible in a court exercising family law jurisdiction, but can be admitted into a criminal court ( R v Baden-Clay  QSC 351). It is unsatisfactory and potentially dangerous to provide an assurance of confidentiality for only part of a process or for certain types of communications and to expect anyone, let alone fearful and traumatised clients, to understand and remember these complicated distinctions. Practitioners also need to be clear about their obligations regarding confidentiality. Rather than an arbitrary distinction in the protections offered based on the source of the sensitive material, Women’s Legal Service NSW (‘ WLS’ ) suggests there is a need for victim centred practices, and equivalent protections should be available for all therapeutic records. Intake processes must also be protected and recognised as an essential element of safety and risk assessment requiring the victim’s trust and which may be ongoing, conducted by more than one staff member, and not simply a discrete initial step. is then not admissible pursuant to section 10J of the Act. Further,
• A genuine commitment to improving responsiveness to victims/survivors of family violence must include preserving the integrity of their therapeutic relationships. • Undermining therapeutic relationships that support a parent who is a victim of family violence is both real harm to the victim parent and also likely harm to the child. • Family law professionals must commit to adopting victim centred practices, including
equivalent protections of therapeutic records
regardless of their source, obtaining informed consent and seeking the least intrusive source of evidence first.
the FDR process begins and ends and therefore what will and will not be protected under the Act. This arises because many agencies providing FDR employ staff other than FDRPs to conduct intake. The courts have held that the protection under the Act does not extend to communications made at the intake stage because they were not made to a FDRP conducting FDR ( Rastall v Ball & Ors  FMCAfam 1290 and Holden & Holden  FCCA 788 considering the effect of sections 10H and 10J of the Act). A similar position is likely to be taken when determining the scope of family counselling.
Confidentiality confusion In all matters, particularly those
involving allegations of family violence and abuse, clients and service providers must be able to rely on a clear and shared understanding of confidentiality. Without this, victims of violence may be