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:
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:
Section10D of the Act creates and defines the privilege attaching to communicationsmade to a family counsellor in the conduct offamily counselling, andarticulates the circumstances in which that privilege may, or must be waived.Given the absence of legislativeconstraint upon the persons or entities towhom, or to which disclosed communications may be published, failure to observethe legislativeimperatives of s 10D could have quite unintendedconsequences, and potentially adverse implications for the welfare of childrenreferredto 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:
Tothe extent that the learned Federal Magistrate purported to rely upons 10D(3)(b), with respect to him, the facts of this casereveal that itcould not be enlivened. The reference to “a court” in s 10D(3)refers only to communications made by “achild under 18”, and not tothe parties to the marriage in this case. Section 10D(3)(a) does not refer to,or invoke the interventionof “a court”. That cannot have beeninadvertent. If the legislative intention had been that a Court could overridethewishes of the adults falling within s 10D(3)(a), or the familycounsellor, 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:
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:
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 thedisclosure 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 PartVII) 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:
Section10D of the Act creates and defines the privilege attaching to communicationsmade to a family counsellor in the conduct offamily counselling, andarticulates the circumstances in which that privilege may, or must be waived.Given the absence of legislativeconstraint upon the persons or entities towhom, or to which disclosed communications may be published, failure to observethe legislativeimperatives of s 10D could have quite unintendedconsequences, and potentially adverse implications for the welfare of childrenreferredto 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:
Tothe extent that the learned Federal Magistrate purported to rely upons 10D(3)(b), with respect to him, the facts of this casereveal that itcould not be enlivened. The reference to “a court” in s 10D(3)refers only to communications made by “achild under 18”, and not tothe parties to the marriage in this case. Section 10D(3)(a) does not refer to,or invoke the interventionof “a court”. That cannot have beeninadvertent. If the legislative intention had been that a Court could overridethewishes of the adults falling within s 10D(3)(a), or the familycounsellor, 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:
- TheCourt is not persuaded that s 69ZX purports to empower the Court to require theproduction of documents in the circumstances ofthis case. If it does, then itcould not in the Court’s view override the clear expressed terms of s 10Dof the Act.
- TheCourt is not persuaded that the provisions of s 69ZX are inconsistent andirreconcilable with the provisions of s 10D. As theirterms make clear, thesections are directed to quite different issues. Section 69ZX suggests howpowers created by other provisionsof Part VII might be exercised, rather thanconferring powers. However, to the extent that the provisions are, or may be,inconsistentand/or irreconcilable, the presumption that the general provisionsof s 69ZX should “give way” to the specific provisionsof s 10Dshould be applied.
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:
- Currently,the admissibility into evidence of communications and admissions made in familyand child counselling and family and childmediation, or in a professionalconsultation pursuant to a referral by a family and child counsellor or familyand child mediator,is addressed by section 19N of the Act.
- Section10E largely recreates section 19N, to the extent that that section relates tofamily counsellors. Subsection 10E(1) providesthat a communication made infamily counselling is not admissible in any court or proceedings, in anyjurisdiction.
- Subsection10E(1) also provides that a communication made when a professional consultationis being carried out on referral from afamily counsellor is also inadmissiblein any court or proceedings, in any jurisdiction. In order to ensure thatprofessionals towhom family counsellors make referrals are aware of theinadmissible status of communications made to them, subsection 10E(4) requiresthe family counsellor to inform them of this fact when making a referral.(emphasis added)
Theterms of ss 10E(1) and (2) are instructive. It is clear that, unless, and eventhen only in the circumstances there referred to,admissions or disclosures weremade in the terms referred to in s 10E(2)(a) or (b), there is anabsolute prohibition, in all courts,on the admissibility of evidence of“anything said, or any admission made, by or in the company of”, inthis case, afamily counsellor conducting family counselling.(emphasis added)
Tidak ada komentar:
Posting Komentar