Sense and Sensitivity

Family Law, Family Violence, and Confidentiality

Cover of Sense and Sensitivity reportThis paper examines the current climate of increased focus on information sharing, particularly in the context of family law and family violence, and the impact of disclosure of sensitive material on the safety of victims and their children and on the integrity of therapeutic relationships.

It makes a range of proposals around information sharing, therapeutic records and subpoenas.

Read the Executive Summary (below)

Download report:
Sense and Sensitivity: Family Law, Family Violence, and Confidentiality
Carolyn Jones, Women’s Legal Service NSW (May 2016)

Please contact Women’s Legal Service NSW if you would like a hard copy of this paper on 02 8745 6900 or reception@wlsnsw.org.au


This publication has been produced with the financial assistance of the Law and Justice Foundation of NSW.

LJF_logo_external_teal_on_white


Executive Summary

Women’s Legal Service NSW (‘WLS NSW’) is a community legal centre providing free legal services across NSW to women who are disadvantaged by their cultural, social and economic circumstances.

The majority of the women that WLS NSW works with have experienced domestic and family violence and for more than twenty years WLS NSW has advocated for the protection of sensitive records of victims of violence in criminal, civil and family law jurisdictions.

This paper examines the current climate of increased focus on information sharing, particularly in the context of family law and family violence, and the impact of disclosure of sensitive material on the safety of victims and their children and on the integrity of therapeutic relationships.

In some cases information sharing will lead to more timely and safer outcomes, however an increase in information will not address systemic issues such as delay or inexperience in matters involving family violence. The unintended consequences, including providing perpetrators with additional means to cause harm to victims or to abuse litigation processes and further disrupt the mother and child relationship, are relevant.

Ideally less intrusive options will be exhausted before seeking access to therapeutic records. In examining the explicit statutory protections for family dispute resolution and family counselling records a consistent approach to determining access to sensitive material in family law regardless of the source of the therapeutic records appears preferable.

The family law system must take a broader responsibility for victim parents by preserving the confidentiality of therapeutic relationships to allow the best possible opportunity for victims to recover without further incursions on their capacity to care for their children.

Proposals include:

  • Utilise victim centric practices, which encourage obtaining informed consent before sharing information and improved responsiveness to disclosures.
  • Provide guidance on improving the quality of primary evidence about family violence, including the impact on parenting capacity, to reduce reliance on third party records.
  • Develop guidelines and training for the judiciary and family law professionals about the potential impact of access to therapeutic records.
  • Adopt a least intrusive approach when issuing subpoenas for therapeutic records, including a rebuttable presumption that disclosure always creates potential for a detrimental impact on the therapeutic relationship.

In the news

Contact Information

For more information, please contact:

Carolyn Jones, Senior Solicitor

(02) 8745 6900

 

Top
Translate »