Counselling and Reconciliation

When a relationship breaks down, counselling may help the parties work toward reconciliation or adjust to the new situation. Part II of the Family Law Act 1975 covers non-court family services such as counselling and reconciliation. The Act makes counselling compulsory for parties seeking parenting orders and for parties seeking a divorce within two years of marriage.

Parenting orders

Before a court can make a parenting order, the parties must show they have made a genuine attempt to resolve the dispute via family dispute resolution. Section 10F defines family dispute resolution as a process in which an accredited family dispute resolution practitioner helps people resolve disputes relating to separation or divorce, and the care of children. A family dispute resolution practitioner must be accredited under the Family Law (Family Dispute Resolution Practitioners) Regulations 2008.

Once family dispute resolution has been attempted, a “section 60I certificate” will be issued. A certificate may not be required in some situations, such as:

• where there has been family violence by a party, or there is a risk of it;
• where there has been abuse of a child by a party, or there is a risk of it;
• where one or more parties is unable to take part effectively in family dispute resolution.

There are several kinds of certificates which can be issued to a person. A certificate may state:

• the person did not attend but this was due to the other party not attending;
• the person did not attend because the practitioner considered it was not appropriate;
• the person attended and all attendees made a genuine effort to resolve their dispute;
• the person attended but the person or the other party did not make a genuine effort to resolve their dispute;
• the person attended but the practitioner considered it was not appropriate to continue the process.

Under section 60D of the Act, the family dispute resolution practitioner must:

• inform the person that the best interests of the child should be regarded as the paramount consideration;
• encourage the person to act on the basis that the best interests of the child are best met by:
  • the child having a meaningful relationship with both parents;
  • the child being protected from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
  • that the latter should be given greater weight than the former.

Divorce

If a couple has been married for less than two years when application for divorce is made, the court must be satisfied the parties have considered reconciliation. Under section 44(1B) of the Act, a court will not grant a divorce within two years of marriage unless a certificate has been filed stating that the parties have considered reconciliation with the help of an accredited family counsellor. The certificate must be signed by the counsellor and forms part of the divorce application.

If a party does not attend counselling, it needs the court’s permission to apply for a divorce. This is done by filing an affidavit with the divorce application, explaining  why counselling was not attended. This may have been for reasons such as the other party could not be located or refused requests to attend, or that special circumstances exist. Such circumstances could be that there is a history of violence or abuse in the relationship and it is not safe to attend counselling with the other party.

Under section 12G of the Act, a family counsellor must provide certain information to a married person who is considering divorce. Section 12B states this information must include:

• the legal and social effects of the proposed proceedings, including on the care, welfare or development of a child;
• the services provided by family counsellors and family dispute resolution practitioners to help people affected by separation or divorce;
• the steps involved in the proceedings;
• the role of family consultants;
• the arbitration facilities available to arbitrate disputes related to separation and divorce.

Confidentiality

A communication made to a family counsellor or family dispute resolution practitioner is confidential unless:

• disclosure is required and authorised to comply with a law;
• consent is given by the person who made the communication;
• disclosure is necessary to:
  • protect a child from harm;
  • prevent or lessen a serious and imminent threat to the health of a person;
  • report or prevent a violent crime;
  • prevent or lessen a serious and imminent threat to property;
  • report or prevent intentional property damage;
  • help an Independent Children’s Lawyer represent a child’s interests.

Admissibility

Section 10E of the Act provides that a communication made in family counselling is not admissible in court. An admission or disclosure of a child being abused or at risk of abuse may be admitted as evidence unless other sources can provide this admission or disclosure.

For advice or legal representation in any legal matter, please contact Armstrong Legal.