Confidentiality in family law requires more clarity

By Lara Bullock|22 August 2016

A new report has made key proposals in relation to the disclosure of sensitive material in family law matters, in a bid to decrease the impact on victims of domestic and family violence.

Last week the Women’s Legal Service NSW (WLS NSW) released a research report titled Sense and Sensitivity, which looks at the unintended consequences of the disclosure of sensitive materials in family law proceedings involving family violence.

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“We must examine the impact of disclosure of sensitive material on the safety of victims and their children, and how disclosure impacts the integrity of professional relationships, both current and future,” said Carolyn Jones, WLS NSW senior solicitor.

“Family law is particularly confusing. There are statutory protections of confidentiality and inadmissibility for records created by certain professionals in some contexts, whilst other sensitive records are produced via subpoena with often no consideration of the impact on victims.”

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The report, which was launched by domestic violence campaigner Rosie Batty, made 10 proposals in relation to information sharing, therapeutic records and subpoenas.

“We need people with expertise in family law, family violence and therapeutic service provision to work together to develop guidelines to ensure a victim-centric approach to obtaining and using sensitive records,” Ms Jones said.

“The family law system must adopt a broader responsibility for victim parents by ensuring that records of supportive and therapeutic services are shielded from the perpetrator so that victims can focus on recovery and their capacity to care for their children.”

Ms Jones said that despite variable resources and long delays, more certainty must be given about when records may be provided to courts.

“This could be achieved by an amendment to court rules placing an onus on the party seeking access to therapeutic records to establish that there is no less intrusive source of evidence available, and a pilot project to assist victims and therapeutic service providers to object to family law subpoenas.”

Confidentiality in family law requires more clarity
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