Section 10E Family Law Act implies that mediation is confidential and therefore admission made by any person, or any other evidence shared during mediation is not admissible in court. This crucial rule ensures the confidentiality and purity of the mediation process. Confidentiality helps people address their needs, feelings, and decisions without fear of the court using it against them.
It also allows people to feel open with one another throughout the mediation process. This helps them make admissions as to where they may have gone wrong. This article will discuss Section 10E of the Family Law Act and the admissibility of information procured during mediation in court.
Confidentiality Of Mediation
A family counsellor and a family dispute resolution practitioner (FDRP)must not disclose communication made to them at family counselling. Section 10E of the Family Law Act can only authorise disclosure of communication.
However, there is one exception where a family counsellor must disclose communication. This is if the family counsellor or the FDRP reasonably believes that it is necessary to do so for legal purposes. A family counsellor or an FDRP can disclose information in the following situations:
- A person gave consent to the disclosure if a child (below 18 years of age) made the communication.
- If the counsellor believes that disclosing communication can prevent a risk.
Such risks include serious threats to the life or health of a person. Properties can also receive the same treatment. Notably, just because a practitioner can disclose an admission made at mediation doesn’t change the fact that evidence of that admission is still inadmissible in court.
Section 10E states that any evidence in an admission made by a person in counselling is not admissible in court. The only exceptions whereby admission made are admissible are the following:
- If an adult reported that a child is in danger of harm or abuse.
- If the child reported that he/she is in danger of harm or abuse.
Section 10E Family Law Act: A Related Case
There are very limited exceptions where admissions made at mediation/family counselling are made admissible in court. In the case of Choat & Grendel (2018), family counselling notes of the mother were held to be admissible.
The court determined whether they can use evidence from a psychologist’s notes in counselling or if confidentiality protected the evidence. Public interest immunity is a rule of evidence that prohibits information disclosure that might be harmful to the public interest.
The case involves a parental application for a 12-year-old child. There were accusations of parental alienation and domestic violence directed against the father. The independent children’s lawyer issued a subpoena for the mother’s psychologist for her counselling notes.
The mother and her psychologist opposed to releasing of the materials. This is because they were confidential and qualified for public interest immunity. The father sought the papers since the notes were about the mother’s mental health. The Family Court classified the materials to be confidential, but that didn’t mean they were irrelevant or inadmissible.
In the end, the Court took a narrow reading of the extent of the public interest immunity. This is because it pertained to confidential psychiatrist notes, concluding that protection did not apply. Because some of the records seem irrelevant, the subpoena was upheld for the mother. Only a portion of her counselling notes were allowed in court.
Seeking Family Law Advice
It’s important to know what to, and what not to disclose in counselling sessions to prevent family disputes. That’s why it’s important to seek legal advice and approaches with JB Solicitors.
Our family solicitors can help you decide in what to disclose in family counselling sessions. We also have mediation services to help families come to a peaceful agreement rather than going to costly court procedures.
Reach out to JB Solicitors today
