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Family Counsellors and the Family Law Act

1 October 2019

Separation is a stressful and emotional time. If you are considering separation or are currently going through the process of separation, it is important that you look after your emotional health and try and keep your stress levels to a minimum.

In order to achieve that, you may wish to consider family counselling. The purpose of this Article is to outline what the Family Law Act says about family counselling.

What is family counselling?

Family counselling is the process where a ‘family counsellor’ assists one or more people to deal with issues relating to marriage, personal issues or issues relating to the care of children. Those people can include children who are affected or are likely to be affected by separation, or divorce.

Who are family counsellors?

A ‘family counsellor’ is a person who:

  • is an accredited counsellor; or
  • is a person authorised to act on behalf of an organisation designated by the Minister (such as Centacare or Relationships Australia); or
  • is authorised as a Court employee, to act as a family counsellor.

Will the counselling be confidential?

Generally, yes. A family counsellor must not disclose a communication made to them during family counselling, unless they are required to or authorised to under the Family Law Act. This is a significant and somewhat unique protection that the Family Law Act offers.

It is important to note that a lot of “Counsellors” will not come within the Family Law Act definition and therefore will not have the protection of “confidentiality”, as provided under the Family Law Act.

A family counsellor under the Family Law Act, must disclose a communication made during family counselling if they reasonably believe that it is necessary in order to comply with a law of the Commonwealth, or a State or a Territory, e.g. child protection laws.

A family counsellor may disclose a communication made during family counselling in the following circumstances:

  • If they have the consent of the person who made the communication. If the person is under 18 years, the counsellor must have the consent of the people who have parental responsibility for that child;
  • If the disclosure is to protect a child from the risk of physical, emotional or psychological harm;
  • If the disclosure is to prevent or lessen a serious and imminent threat to:

(a)     the life or health of a person, or

(b)     the property of a person;

  • If the disclosure is to report the commission or to prevent the likely commission of an offence:

(a)     Involving violence; or

(b)     a threat of violence to a person; or

(c)     involving intentional damage to property; or

(d)     a threat of damage to property;

  • If the disclosure is to assist an Independent Children’s Lawyer to properly represent a child’s interests.

Will things that I say in counselling be admissible in Court?

If the “counsellor” comes within the Family Law Act definition then, generally, No. However, again, note that a lot of “counsellors” will not come within this definition. Evidence of anything said or any admission made in front of a “family counsellor” who is conducting family counselling, will not be admissible in any court proceedings.

Also, if a family counsellor refers a person to another professional for medical or other professional consultation, anything said or any admission made during the carrying out of those professional services will not be admissible. If your family counsellor refers you to another professional, they have a duty to make them aware of the rules about admissibility of evidence.

This is the case even where the counsellor has been allowed to disclose a communication because of the circumstances set out above.

The only time that evidence of something said in family counselling will be admissible is where:

(a)     an admission by an adult indicates that a child under 18 years has been abused or is at risk of abuse; or

(b)     a disclosure by a child under 18 years indicates that the child has been abused or is at risk of abuse.

However, even in those circumstances the Court can rule the evidence of the family counsellor inadmissible if there is sufficient evidence available from other sources.

TIPS/WARNINGS

If you are looking for family counselling, we recommend that you follow these simple guidelines:

  • Clarify if the person that you are seeing for family counselling is a ‘family counsellor’as defined by section 10C of the Family Law Act. The counsellor should be able to tell you if they are an approved or accredited counsellor.
  • Be aware of the exceptions to the confidentiality rule as outlined above;
  • If your family counsellor refers you to another professional, make sure they are aware of the rules relating to admissibility of communications;
  • Always seek Specialist Family Law advice from a Solicitor prior to entering into any discussions or negotiations about your family law matter.

Need advice?

Each matter is unique and needs to be addressed according to your personal circumstances and needs. To speak with one of our experienced family lawyers, please contact our Brisbane office today. Call us on (07) 3221 4300 to organise a no-obligation initial appointment at a fixed-cost. We will be happy to assist in person, over the phone or by Skype.

2021-11-05T15:13:47+10:00

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J.H., Brisbane
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S.M., Clayfield
Amy, thank you for all that you have done during this matter. You impressed me with your professionalism from our initial meeting, and you have proven beyond doubt, to have had the skills and knowledge required. You are a credit to the company, and I would highly recommend you to anyone in a similar situation.
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D.H., Hendra

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A.M., Chambers Flat
Thank you for your ongoing conciliatory approach in this matter and as always I appreciate your level headed advice. I certainly feel that I ended up with the right Solicitor.
S.C., Nundah
I appreciate my lawyer’s professional approach and her being on top of my situation.
N.S., Mt Gravatt
The staff at Michael Lynch Family Lawyers were great. Everyone was fantastic, professional, understanding, caring and always communicated with me. I knew I was in good hands.
A.A., Eatons Hill
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E.F., Nundah

I have appreciated the way that you and the staff at your firm have handled my situation. I would especially like to mention the professional and caring way my lawyer conducted my case, I am deeply grateful and extremely happy with the results. I will be referring others to your service.

J.H., Wellington Point
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A.A., Eatons Hill

My lawyer was the most knowledgeable of all lawyers I spoke to when looking for a lawyer. Michael Lynch Family Lawyers showed professionalism.

R.R., Brighton

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S.D., Parkinson
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D.S., Coorparoo
If I need a family lawyer in the future I’ll be heading to Michael Lynch Family Lawyers again.
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M.T., Stafford
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B.W., Chapel Hill
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M.J., Manly

Thank you for helping me through this difficult time. You have been caring, compassionate and efficient. Some of my divorcing friends have not been so fortunate. In my mind, you are the best family lawyer in Brisbane. If anyone I know needs a good family lawyer, I will tell them to speak to you. Thanks again.

B.T., Clayfield
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T.V., Everton Park
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C.W., Brookfield
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J.K., Mansfield
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R.G., Wishart

We had such a positive experience with Michael Lynch Family Lawyers, and we highly recommend their services. Meticulous attention to detail, attended quickly to every additional request we made, and made sure we always knew exactly where we were every step of the way. Our lawyer took what was such a stressful and emotional time for our family, and made the process feel so smooth and seamless.

N.B., Brisbane
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C.W., Brookfield

You, guys, provide extraordinary service.

A.O., North Brisbane
Michael Lynch Family Lawyers have really listened to me. I felt confident my case was handled well. The law has changed recently, and I did not feel that a previous law practice I spoke to was suitably up-to-date.
P.B., Carindale

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L.R., Ascot

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L.K., North Lakes

After utilising the mediation services team recommended by your organisation, my ex-partner and I were able to reach some interim agreements about parenting. I am incredibly grateful for the advice provided by Debra Effeney; and found your firm’s services to be exceptionally professional. If we needed to consult a family lawyer in the future, we would have no hesitation in reconnecting with your firm.

K.M., Paddington

My solicitor is a good listener. My documentation maintained the high moral ground.

S.S., Hamilton
Thank you, you placed my needs first, you were aware of the need to reach a final result and not get caught up in the personal issues of the other party.
S.L., Moranbah
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A.C., Morningside
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J.S., Holland Park

I really liked the personable service by Michael Lynch Family Lawyers, the simple plain language you adopt and everyone’s patience.

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K.H., Augustine Heights

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C.M., Morningside
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R.M., Warwick

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C.M., Brisbane

I just wanted to get in touch to say thanks for helping me get through my custody and settlement. Thanks again to you and your staff. You have had a significant positive impact in my kids’ lives!

B.S., Brisbane
Michael, thank you again for your presence here yesterday. We really appreciated the clarity and accessibility of your presentation. It is a rare thing to find somebody who not only has expertise, but also has a skill in communicating it.
J.S., Brisbane

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S.S., Hamilton
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T.C., Tarragindi
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M.R., West End