Date: 29 September 2021 Time: 10:00 AM – 12:30 PM AEST Venue: YouTube Live via ZOOM Speakers: Alan Baker
On the 29th of September, the FLPN – Greater Melbourne, in collaboration with the Partnership of Victorian Family Relationship Centres, hosted a training webinar titled - “Family Law Overview for Family Counsellors and Family Dispute Resolution Practitioners”.
This webinar aimed to enhance understanding of legal issues impacting on non-legal professionals in the family law system, including those working as Family Dispute Resolution Practitioners and/or family counsellors. The webinar also provided webinars to assist professionals in meeting their legal and professional obligations and to enhance greater communication and collaboration between the legal professional and FDRPs.
The webinar's presenter, Alan Baker has worked as a Senior Family Dispute Resolution Practitioner and in-house solicitor with CatholicCare Victoria and the Geelong Family Relationships Centre for 15 years. Prior to joining CatholicCare, Alan worked as a solicitor in private practice for over 25 years in a wide range of legal areas, including family law.
A summary of the webinar's content is as follows:
Children in the context of the Family Law Act
Alan provided a summary of the Family Law Act (Cth) 1975 ('the Act') before explaining family violence in the context of the Act. Part VII of the Act covers children in particular. The objects of this Part, as stipulated in s 60B, are to ensure that the best interests of the child are met. S 60CA makes this object the paramount consideration in the making of a parenting order, where the best interests of the child are explained by the primary considerations of safety (most importantly) and a meaningful relationship with both parents, as well as the 13 additional considerations listed under s 60CC(3), which include the views of the child and grandparents.
Parental Responsibility is vaguely defined under s 61B to mean 'all the duties, powers, responsibilities and authority which, by law, parents have in relation to children'. Shared parental responsibility is the prima facie position, however this can be rebutted by Court order, such as if there are reasonable grounds to believe that there has been family violence or child abuse.
The Attorney General's Department has a list of organisations who are designated to authorise people to act as family counsellors (e.g. CatholicCare, Lifeworks, Relationships Australia) and provides a process by which they exercise their right to appoint family counsellors. The importance of defining family counselling (under s10B) is to know whether or not it is a situation of 'family counselling by a family counsellor' for the purposes of the Act, which prescribes 'musts', 'must nots' and 'mays' for family counsellors.
Admissibility of evidence
The general rule of admissibility, provided under s 10E and 10J, is that anything said during family counselling or FDR is not admissible in any Court. The rule also extends to a professional 'to whom family counsellors or FDRPs refer a person for medical or other consultation'. However, in situations of child abuse, an exception to the general rule applies, where you are a mandated reporter and your evidence will be admissible. Under s 10E(2) and 10J(2), the rule against admissibility does not apply to an admission by an adult, or a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse.
Family Counsellors and FRDPs – Responding to Subpoenas
Alan outlined an appropriate response to a subpoena/summons and importantly, to treat it as urgent. A subpoena is effectively a court order, meaning strict time limits apply and properly responding to it will take time. The law compels CatholicCare, in most situations, to not provide reports which can be used in Court, and to resist efforts to subpoena family counsellors or their notes to Court. To assist with this process, example emails responding to a foreshadowed and an actual subpoena were provided.
Working with Independent Children's Lawyers ('ICLs')
One of the ‘may disclose’ exceptions to the confidentiality rule is the provision of information to an ICL if it is believed that doing so will assist the ICL to properly represent a child’s interests. Alan advises family counsellors and FDRPs to seriously consider this option on every occasion when they know an ICL is involved, with regard to whether an ICL can contribute to a best interests outcome, and that most ICLs are sensible and cooperative.
To assist with this, Alan provided example emails to respond to an ICL and initiate contact with an ICL. The webinar concluded with an outline of the relevant court decisions impacting family counselling and family dispute resolution.
"Concise information presented in an engaging manner by a knowledgeable presenter".
"Information was presented very clearly throughout the session and adequate time was allowed for questions which were answered very thoroughly."
"Informative, powerpoints were very helpful, Alan presented the information very well."