Confidentiality in family dispute resolution and family counselling: Recent cases and why they matter

Abstract Since 2006, the majority of separated and separating parents are mandated to attend family dispute resolution (FDR) before approaching the Court. The Family Law Act also requires, by s.65F, that Family Counselling occur prior to the Court making final parenting orders. The Family Law Act makes specific provision for confidentiality and privilege of communications that occur in both FDR and family counselling. However, the rigorous protection of confidentiality in such processes, previously given by legislative and public policy bases, is waning and challenges are increasingly made to read down the level of privilege attached to such processes. Recent case law has exposed serious defects in the drafting of confidentiality and privilege provisions of the Act and especially as they relate to FDR and this paper will explore that case law and implications for practice.