Should there be exceptions to privilege in family law?

Hello everyone,

Given the tragic circumstances surrounding the recent and much publicised Darcey Freeman case, the Victorian Child Safety Commissioner is calling for new protocols compelling lawyers to alert child protection workers when they fear for the safety of children in family law disputes.

In Victoria, and I assume other states, certain professions are already mandated to report possible child abuse to the Department of Human Services (DHS). These include doctors, nurses, psychologists, teachers and child care workers.

Lawyers have no such existing mandate and in fact are bound by professional privilege.

A lawyer’s first duty is to the court. We can not knowingly allow our client to mislead the court. A lawyer also has a duty to their client.

The relationship between lawyer and client is a fiduciary one, and as such imposes obligations of trust, integrity and confidence. Thus in simple terms we have a duty to keep information confidential unless instructed to do otherwise.

In family law clients emotions are perennially running high (I had two clients cry in my office yesterday) and people are often frustrated, upset and angry. In the heat of the moment people say things they do not mean, and experienced practitioners know they need to view these comments in a measured way.

This does not mean that I have not made reports to DHS before, when I have thought children may have been at risk. At times I have also had to notify the police when I have thought that I might be at risk. Fortunately, I have not had to deal with anything like the Freeman case.

After many years in the family law jurisdiction I am opposed to any protocol that requires me to report everything my clients might say, even when I do not believe the threat is a serious one but rather resulting from the frustration and circumstances being created by these types of intense situations. In my experience that would result in a report for almost each file.

Furthermore the DHS does not have the resources to deal with the notifications they have made now. They certainly would not have the resources to deal with notifications made from lawyers that even the lawyers do not take seriously.

The Freeman case is unmistakably tragic and senseless. That cannot be denied.

But in my opinion a protocol which threatens the fiduciary relationship between lawyer and client, whilst not taking into account the raw emotions displayed by all family law clients, is not a progressive step and demonstrates a fundamental lack of insight into the dynamics of people venting their emotions through such a difficult process.

As always please feel free to comment on this or any other of my blogs. I would also be pleased to respond to any questions you may have on this topic. If you have any further queries please feel free to contact me directly at Septimus Jones & Lee on +61 3 9613 6555