We tend to meet parents at some of the worse times of their lives as they adjust to their new post-separation lives. In some parenting matters this leads to a large amount of conflict between parents. Where the conflict becomes sufficiently high the following can occur:
- Parents became unable to communicate or make important decisions regarding a child.
- A child begins to isolate themselves from both or either parent.
- A child may develop a hatred of a parent and refuse to see that parent despite previously having a close relationship with that parent.
- Sibling relationships may break down and children began to fight amongst themselves.
If this occurs the Court can be a blunt instrument and has thus turned to family counselling to assist families.
Family counselling is defined at s.10B of the Family Law Act 1975 (Cth) (“the Act”) as a process where an accredited family counsellor:
- help a person or persons (including a child) deal with personal and interpersonal issues in relation to marriage;
- help a person or persons (including a child) who are affected or likely to be affected by separation or divorce to deal with either personal and interpersonal issues and issues relating to the care of children;
- help a person or persons (including a child) who may apply for a parenting order to deal with issues relating to children.
The Court has the power under S.13C of the Act to order families to attend family counselling at which point the parties will attend separate and possibly later joint sessions in an effort to repair the relationships in the family.
One of the greatest advantages to family counselling is that not only are family consultants prohibited from disclosing what occurs in counselling (S.10E of the Act) but any evidence of anything said to the family counsellor is inadmissible/not able to be used in Court (S.10E of the Act) unless it is a disclosure that indicates a child has been abused or is at risk of abuse. This allows parties to freely discuss issues without such discussions being used in Court against them.
This protection has been enforced strictly by the Courts.
For example, in the case of UnitingCare – Unifam Counselling & Mediation & Harkiss and Anor [2011] FamCAFC 159, Unifam (the family counsellor service) objected to a subpoena for all of their records despite both parents agreeing to the release of the records.
On appeal, the Full Family Court set the subpoena aside noting that the parties should have only requested material that included disclosures of risk or abuse to the children and that whether that evidence would then be admissible would be a matter for the trial judge.
For some families, family counselling can be transformative, but it can be difficult to be accepted into such services without a referral from the Court due to the high demand for their services. If you are in the midst of a parenting matter or require assistance with any family law matter, please contact our office on (02) 4944 3322 to make an appointment with one of our family law solicitors.
