The Protection of Confidentiality in Australian Family Law

• Published date: 01 January 2020
• Date: 01 January 2020
• Author: Judge Joe Harman
• DOI: http://doi.org/10.1111/fcre.12459

THE PROTECTION OF CONFIDENTIALITY IN AUSTRALIAN

FAMILY LAW

Judge Joe Harman

This paper identifies and discusses the legislative provisions which protect confidentiality in family law proceedings in

Australia. The purpose of discussing these protections is two-fold: firstly, to identify the scope and operation of these protec-

tions for Australian legal practitioners; secondly,to allow comparison of Australian protections to those offered in other juris-

dictions. This paper will consider duties of confidentiality and evidential privileges in the context of settlement negotiation,

mediation, arbitration, lawyer-client relationships and medical, counselling and other therapeutic relationships. The rationale

for the protection of confidentiality in some of these relationships and circumstances, but not in others, will also be consid-

ered in an attempt to understand why it is so.

Key Points for the Family Court Community:

This article deals with the operation and scope of confidentiality obligations in family law proceedings, including:

The nuanced differences between confidentiality obligations and evidentiary privilege; and

The application of duties of confidentiality and evidential privilege in certain situations and relationships including:

▪Settlement negotiations

▪Mediation

▪Arbitration

▪Lawyer-client relationships

▪Medical, counselling and other therapeutic relationships

In particular, this article explores the absence of privilege protecting medical and therapeutic relationships in

Australia and the various calls for reform to the laws surrounding the disclosure of medical, counselling and thera-

peutic relationship evidence in family law proceedings.

This article considers how the rationales that underpin confidentiality obligations in medical, counselling and other

therapeutic relationships are complimentary to the public policy considerations of ensuring the proper administration

of justice in family law proceedings, and why such obligations should be safeguarded.

Keywords: Administration of Justice; Arbitration; Best Interests of Children; Confidentiality; Confidentiality in Medical

Counselling and Therapeutic Relationships; Disclosure; Evidence in FamilyLaw Proceedings; Evidentiary Priv-

ilege; Family Law; Lawyer-client ProfessionalPrivilege; Mediation; Settlement Negotiations.

I. INTRODUCTION

In Australia,

1

private family law disputes are addressed by one uniform law, the Family Law Act 1975

(FLA). The FLA applies consistently throughout the Commonwealth.

2

Proceedings under the FLA are

heard and determined by one of two Federal Courts

3

—the Family Court of Australia (the superior and

appellate Court) or the Federal Circuit Court of Australia (the first instance trial Court with a broad juris-

diction to hear matters arising from federal legislation).

4

The rules of evidence applied in such proceedings

are also consistent, being contained within either the FLA or the Evidence Act 1995 (Cth) (EA).

5

Corresponding: judge.harman@federalcircuitcourt.gov.au

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 126–141

© 2020 Association of Family and Conciliation Courts

Public family law disputes, involving child welfare agencies and the potential for children to be

placed in out of home care, are dealt with by State and Territory jurisdictions. Hence, the applicable

law is determined by the State or Territory in which the proceedings arise. There are, accordingly,

eight different jurisdictions for child welfare proceedings and the substantive law and applicable

rules of evidence vary between the States and Territories.

6

This paper will focus on private family law disputes conducted in the Federal sphere and will

consider the duties of confidentiality that arise and the evidentiary privileges that apply with respect

to settlement negotiation, mediation, arbitration, lawyer-client relationships, and medical counsel-

ling and other therapeutic relationships. What will be seen is that all professionals working with

parties of family law disputes are bound by similar duties of confidentiality. However, only those

relationships

7

which have some direct connection to the court process and the administration of jus-

tice are protected by evidentiary privileges. As described below, confidentiality is protected with

respect to professional relationships which support the court’s work, whilst duties of confidentiality

in professional relationships not seen as connected to the court’s role are overridden in preference to

courts getting to the truth.

II. DEFINING CONFIDENTIALITYAND PRIVILEGE

From the outset it is important to define the terms “privilege”and “confidentiality.”Privileges

are evidentiary in nature and are designed to enhance or protect the administration of justice. A

duty of confidentiality binds a person who possesses or receives information to maintain that infor-

mation as confidential

8

and to not disclose that information to any person, save with the consent of

the person who provided the information (the confider).

9

A duty of confidentiality may be express or implied,

10

and may arise from contractual obliga-

tions (i.e., an employee’s duty to not disclose “trade secrets”or “commercial in confidence”infor-

mation), professional rules or ethical duties, statute or equity (whereby a person in whom

confidential information is reposed is bound, by conscience, to not disclose or use information in a

way inconsistent with its receipt).

11

There are many relationships and circumstances which give rise to duties of confidentiality.

Whilst the class of relationships which give rise to a duty of confidentiality is not closed, confidenti-

ality is recognised as a duty binding all professionals engaged in assisting parties involved in family

law disputes. This includes medical practitioners, counsellors and therapists, arbitrators, lawyers and

mediators.

Australian law recognises the importance of confidentiality in professional relationships.

12

How-

ever, the law has never recognised a duty of confidentiality as an absolute basis for a person to resist

disclosure of relevant information (evidence) to a court.

13

In the context of litigation, confidentiality

is protected only to the extent that it is reasonable and in the public interest to do so.

14

The law

requires that private duties of confidentiality yield to a greater public good, being that “…all rele-

vant evidence should be adduced to the court when it makes its decision.”

15

The High Court of

Australia is clear that “the public interest in discovering the truth prevails over the private duty to

respect confidence”

16

such that “…no obligation of confidence, of itself, entitles the person who

owes the duty to refuse to answer a question or to produce a document in the course of legal

proceedings.”

17

Confidentiality regulates the use of information by the parties to a relations hip or transaction,

whereas privilege regulates and limits the use of otherwise confidential information as evidence in

proceedings. Confidentiality is, in some circumstances, protected by privilege. A privilege is, as

described by Diplock LJ, “… a right to withhold from a court, or a tribunal exercising judicial func-

tions, material which would otherwise be admissible in evidence.”

18

Privileges are an exception to

the overarching public policy that courts should have access to all relevant evidence. Privileges limit

the use, in litigation, of information that was disclosed in a confidential relationship. Privileges can

vary in the degree to which they limit the use of evidence up to the point of exclusion of all or

Harman/THE PROTECTION OF CONFIDENTIALITY IN AUSTRALIAN FAMILY LAW 127