You and your partner are facing the prospect of separation. You feel obligated to attend couple counselling before you make the final decision to separate. In what circumstances must you attend couple counselling? Is couple counselling confidential?
Under the family law legislation, the only circumstance that requires couple counselling is where married couples have been married for two years or less and wish to apply for a divorce. If you fall into this category, then along with the Application for Divorce (which can only be filed after you have been separated for 12 months), you must also file a Counselling Certificate or file an Affidavit seeking the Court’s permission to apply for a divorce explaining the reason why you have not attended counselling (eg the other party cannot be located or there is a history of family violence or abuse).
People who have been married for more than two years are not required to attend couple counselling before filing for divorce. However, all legal practitioners (and other specified people working with families) must provide separating couples with information about reconciliation. In most cases we do recommend that couples attend counselling before making the final decision to separate.
Couple counselling is generally confidential, however Section 10D of the Family Law Act requires or authorises disclosures of communications made in counselling in the following circumstances:
1. If the counsellor reasonably believes the disclosure is necessary for the purpose of complying with a law (eg compliance with a Subpoena);
2. If consent to the disclosure is given;
3. If the counsellor reasonably believes that the disclosure is necessary for the purpose of:
(a) protecting a child from the risk of harm (whether physical or psychological); or
(b) preventing or lessening a serious and imminent threat to the life or health of a person;
(c) reporting the commission, or preventing the likely commission, of an offence involving violence or a threat of violence to a person; or
(d) preventing or lessening a serious and imminent threat to the property of a person; or
(e) reporting the commission, or preventing the likely commission, of an offence involving intentional damage to property of a person or a threat of damage to property; or
(f) if a lawyer independently represents a child’s interests – assisting the lawyer to do so properly.
4. In order to provide information (other than personal information) for research relevant to families.
In a recent case of Uniting Care – Unifam Counselling & Mediation & Harkiss  (http://www.austlii.edu.au/au/cases/cth/FamCAFC/2011/159.html) the extent of confidentiality in couple counselling was explored.
The Court found that the counsellor could not be compelled to produce the counselling records irrespective of the consent of the parties.
Evidence of anything said or admissions made during counselling is not admissible in any court or proceeding unless there is an admission or disclosure by an adult or a child that indicates that a child has been abused or is at risk of abuse, unless, in the opinion of the court, there is sufficient evidence of the admission or disclosure available to the court from other sources (see section 10E).
At Armstrong Legal, we have an approved panel of recommended couple counsellors. If you would like a referral to a couple counsellor within your area or further information about family law, please do not hesitate to contact us.
Couple counselling. What does the law say?
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