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  • 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.

Records 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 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 [2010] FMCAfam 1290 and Holden & Holden [2015] 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.

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