There is much confusion about counselling in family law. This article will address the key questions and put forward some potential outcomes if it is the chosen path.
So what is counselling in family law?
Broadly speaking, there are 5 types of counselling services:
- Relationship Counselling
Entered into by a couple with a psychologist or social worker. The couple voluntarily take this step to either “save a relationship” or to try to create a spirit of co-operation for the logistics of splitting up, usually before or in the early stages of lawyers involvement.
- Mandatory Section 60I “Counselling”
Entered into to try to resolve a dispute about children before being allowed to start a Court Case. It is named after the section of the Family Law Act, which requires that (except in rare special circumstances) a parent can’t take the other to Court about a child, unless they have tried a non-Court counselling process to sort out the issues.
Relationships Australia, many religious groups, psychologists, barristers and professional mediators are licensed to conduct such a process. If the counselling fails, an s60I Certificate is issued and either parent is then free to start a Court case – if the other parent refuses to participate/doesn’t turn up/drags their feet, the Certificate can be issued.
If counselling succeeds, a “parenting plan” is often the outcome. Lawyers are sometimes asked to formalise proper wordings for such plans as Consent Orders to be issued by the Court confirming their parenting arrangement.
- Short Duration Marriage Counselling
If you want to divorce in Australia where the marriage ceremony took place less than 2 years ago you must have counselling before a Divorce Order can be issued by a Court.
- Court Directed Therapeutic Counselling
This arises in cases with children where a parent’s relationship with a child has broken down (which can often be proximate to parents separating for a variety of reasons). In such circumstances, a Judge will direct that the parent and child have a series of meetings with a psychologist, to clear the air and re-bond and re-establish a connection, as a precursor to spending time in that parent’s household.
- Ongoing “Private” Counselling
Many litigants, in the sometimes long and unpleasant environment of a family law case, require assistance. Episodic depression after a separation is common and many people need help. Social workers/GP’s/psychologists and psychiatrists are often retained confidentially by a spouse to help either before or during the separation process.
Gone are the bad old days of the 80’s and earlier where the other spouse would use counselling “against you” to allege you are damaged and shouldn’t get time with the children because you are “nuts”. The modern Court doesn’t tolerate this attitude and recognises that a parent seeking assistance through a traumatic period is an insightful person, who understands the need to have assistance on separation, and the Court tends to reward that parent.
On the numbers
Only 1 in 5 couples with marital problems seek relationship counselling.
For 30% of those couples, the counselling doesn’t work.
40% of couples who obtain a divorce haven’t sought any counselling.
When to bypass counselling (if permitted)?
Counselling is often a poor option if:
- There is domestic violence;
- There is financial bullying;
- There are mental health issues of a serious nature for either or both spouses and/or a child;
- Disability affects a parent or child; and
If the process for it in your case is manipulated so that it takes too long.
In our cases, we assist parties to put some guidelines in writing around counselling to get the most from it. It can’t resolve a whole case but at the least, particularly in cases about children, effective counselling can limit the number of issues in dispute dramatically, often saving thousands of dollars and reducing heartache. It often establishes some goodwill with a person you might have to co-parent with for years into the future.
Ask a member of our Family Law Team how counselling could benefit you in your family law circumstances.