Harkiss v Beamish and Unifam Counselling and Mediation v Harkiss – The balance between confidentiality and the court’s need for relevant information.

By Michael J. Tyler

The two cases, Harkiss v Beamish [2011] FMCAfam 527 and UnitingCare – Unifam Counselling and Mediation v Harkiss and Another [2011] FamCAFC 159, center around the issue of confidentiality in family counseling and whether records from such sessions should be disclosed under a court subpoena.

Case Summary and Key Legal Issues

1. Harkiss v Beamish [2011] FMCAfam 527:
   • In this case, the Federal Magistrates Court of Australia addressed whether family counseling records held by UnitingCare (Unifam) could be subpoenaed and disclosed in a family law dispute. The parents, Mr. Harkiss and Ms. Beamish, consented to the disclosure, but Unifam objected, citing confidentiality under section 10D of the Family Law Act 1975 (Cth). Unifam argued that confidentiality in family counseling is critical for public policy and should not be compromised even with consent from the parties involved.
   • The court ruled that section 10D(3)(a) permitted (but did not require) disclosure when both parties to the counseling consented. The court interpreted “may” in the statute as giving permission to disclose rather than granting Unifam discretion to withhold the documents. Therefore, the court ordered the production of the documents to allow the parties to effectively argue their case and ensure the child’s best interests were paramount​(Harkiss & Beamish [2011…).
2. UnitingCare – Unifam Counselling and Mediation v Harkiss and Another [2011] FamCAFC 159:
   • On appeal, Unifam challenged the lower court’s order requiring disclosure, arguing that “may” in section 10D(3) should imply discretion and not compulsion for family counselors. The Family Court found in favor of Unifam, determining that section 10D only authorized disclosure if Unifam voluntarily chose to do so, not that they were obligated to comply simply because the parties consented. It noted that section 10D created a privilege for confidential communications in counseling, protecting such records from mandatory disclosure. The appellate court held that the lower court erred by not respecting Unifam’s discretion and by not considering section 10E, which limits admissibility of counseling records. Thus, the appeal was upheld, reinforcing the privileged status of family counseling communications​(UNITINGCARE – UNIFAM CO…).

Key Case Law Points

• Confidentiality in Family Counseling: Both cases emphasize that confidentiality in family counseling under the Family Law Act 1975 is a priority, particularly under sections 10D and 10E.
• Interpretation of “May” in Section 10D: The appellate court underscored that “may” in section 10D allows, but does not compel, family counselors to disclose records, leaving it within their discretion even if parties consent.
• Limitations on Admissibility: Section 10E prevents certain counseling communications from being admissible in court, thus bolstering confidentiality and protecting sensitive disclosures made during family counseling sessions.

These cases illustrate the balance between confidentiality and the court’s need for relevant information, especially in the context of family disputes where the welfare of children is concerned.