Allison Baden-Clay - GENERAL DISCUSSION THREAD #46

[STELLA85]

It is an interesting choice of colour isn't it? It looks really nice. There is still a pretty yellow flower pinned to the front fence also.

It's the same yellow as the Brookfield Early Childhood Centre (who also own the house)

 

[alioop]

http://www.courts.qld.gov.au/__data/assets/pdf_file/0008/178703/sc-pd6of2013.pdf

This is a link to Practice Direction 6 of 2013, so its brand new, about the management of complex criminal trials. It refers to the section 590AA pretrial application that is mentioned in the courier mail link that Liadan posted.

The lawyers have a week to work out how to deal with the legal question of how to seek a courts ruling on the admissibility of the counsellors evidence. It is an interesting legal point whether it is admissible and also by what procedure to commence to determine its admissibility.

 

[KG1]

hmm but was it family counseling or 'marriage' counseling?

Unless 'family counselling' includes 'marriage counselling', then I would read this as meaning 'family counselling' only. From my recollection, the counselling referred to in past posts and MSM was marriage counselling, and if this was correct, it is likely the counselling would not be caught under those section of the FL Act. It may have been counselling ordered by the Family Court, as a pre condition to another matter, such as an application for a formal separation or the like. Just my thoughts.

 

[KG1]

Further to my earlier post, and after re reading the part of GBC's statement referring to the counselling, it appears that Allison arranged it and therefore it would definitely not be court ordered.

 

[Strangeworld]

Relationships Australia include family counselling and relationship counselling interchangeably. One and the same. IMO, the prosecution want to hear more about the difficulties they were experiencing in their marriage, and dynamics of their relationship. It may also help in their evaluation of Allison's diary, if it is admissible in court. Input from a counselling professional will also help to substantiate testimony from friends and family in regards to the state of their marriage, as the counsellor would be an expert witness.

Although I normally don't agree with breach of confidentiality in counselling if there is no immediate risk to anyone, in this case I really hope the court orders the counsellor to speak. It's like Allison will get to speak from the grave.

 

[marlywings]

An interesting post over in Allison's phone records thread...

[ame="http://www.websleuths.com/forums/showpost.php?p=9786669&postcount=4"]Websleuths Crime Sleuthing Community - View Single Post - Allison Baden Clay phone records[/ame]

 

[marlywings]

Also...I found this "report" from 2011 which I don't recall reading before...

Its only human nature when you’re feeling second best to over compensate and to give an impression to others that everything is awesome and that you’re the best!

http://www.century21.com.au/agentArticleSystem/agents/281/uploadedFiles/StLucia-11Feb.pdf

 

[Radster]

Reading between the lines, it sounds as though the prosecutors believe having the counsellor testify would circumvent the need for some other witnesses - a time-saver. While this seems like a good move, I do worry about the bigger picture here: that families and couples who need counselling may not be so willing to speak openly and honestly if there is a chance their words could end up repeated in a public forum. It's a tricky one.

Alioop, a legal question: the Lloyd Rayney was heard by a judge instead of a jury due to the high-profile nature of the case. Is this an option for the GBC trial? Many thanks for your advice, as always.

 

[Flinders]

It's the same yellow as the Brookfield Early Childhood Centre (who also own the house)

As in the blue paint that fell off the back of a truck for the rental properties. Now we have yellow on two properties. Unless it is Aunty who had a great idea that the house could be used for therapy of DV women.

 

[Flinders]

Also...I found this "report" from 2011 which I don't recall reading before...

Its only human nature when you’re feeling second best to over compensate and to give an impression to others that everything is awesome and that you’re the best!

http://www.century21.com.au/agentArticleSystem/agents/281/uploadedFiles/StLucia-11Feb.pdf

This was from Century 21. As my Mum said don't blow your own horn, if you are good people know it and it can be seen as condescending. GBC had a more public profile but as we know ABC was very modest but had many accomplishments.

 

[Flinders]

Baden-Clay murder case set to test confidentiality of marriage counsellors' work

http://m.theaustralian.com.au/news/...counsellors-work/story-e6frg6nf-1226704073854

Kim Healy (@KimHealyLawyer)
26/08/13 5:56 PM

 

[Flinders]

I shall change my name to Talkative as I hog the thread.

I am not in the profession but have used a counsellor regularly since my family tragedy.

Point 1. Nothing you say is confidential. We respect your rights but if we are called to court we will be obliged to participate and admit evidence. This evidence may be related to the children.

Point 2. Duty of Care. If a child is in danger, my duty is to the child and not you.

Point 3. Here is the grievance procedure.

If GBC's doctor appointments were admitted, why not counselling?

 

[Liadan]

I shall change my name to Talkative as I hog the thread.

I am not in the profession but have used a counsellor regularly since my family tragedy.

Point 1. Nothing you say is confidential. We respect your rights but if we are called to court we will be obliged to participate and admit evidence. This evidence may be related to the children.

Point 2. Duty of Care. If a child is in danger, my duty is to the child and not you.

Point 3. Here is the grievance procedure.

If GBC's doctor appointments were admitted, why not counselling?

Flinders I have a hard time with this as well - I would think that 'professionals' such as psychologists, doctors and lawyers would be able to use the proviso of confidentiality but.... apparently there is the special category of counselor that can claim total confidentiality of the family counseling sessions.

Of course, the law should be open to questioning and probing- and indeed this is the decision that will be determined for GBC in the next week. If the gravity of the situation is deemed to be important enough then the emphasis is on disclosure to get the correct information to make a qualified decision.

I must stress that this is only my understanding of how they will proceed - not for a minute do I think they will rule to disclose -- its just that courts often think it is a wise move to know all information rather than keeping stuff hidden behind confidentiality.

 

[Flinders]

To Lidian, this 'special confidentially' may relate to Allison. She may have had grief for a miscarriage or the realisation that GBC is not dedicated.

In my grief I have told my husband and father that I would swap them for my brother. Does that mean I wish them dead?

Ashley is a great brother representing the family at the girls events. Allison's sister has always said at her funeral, we will being you justice.

 

[Strangeworld]

I think this case is going to highlight a very significant flaw in legislation nationally and state-based. I am very familiar with psychology and counselling practice, and I can tell you the poor counsellor (and Relationships Australia) would be very concerned about the impact this decision will have on the trust they build with clients in the future.

From my understanding, it is very complex. There is the issue of confidentiality and building trust with clients so they can use the time in counselling and therapy, and have a strong working relationship with their counsellor/therapist. On the other hand, the legislation is contradictory, mainly in the areas of jurisdiction (federal versus state), but also within single Acts (two sections of the Act can say totally opposite things in this type situation). From what I have read, there is no clear cut answer, and the judge is going to have a hard time making the call on this one, as both arguments for and against a forced breach of confidentiality seem valid and within the law.

Duty of care to clients, and the strength of the client-therapist relationship should always take priority, but there are many clear cut times when this would be exchanged in favour of legal requirements (such as child abuse), but this case is not so black and white, and is also very high profile.

This case could lead to some changes to the Act to make it clearer and easier for both counsellors/therapists to apply, as well as legal professionals.

I can imagine many clients, particularly in Family counselling/court orders/divorce proceedings will be asking their counsellors for clarification on what exactly is private and safe from the peering eyes of the courts, and the counsellors been unable to give a clear answer when it comes to court orders.

 

[Seeking]

I think this case is going to highlight a very significant flaw in legislation nationally and state-based. I am very familiar with psychology and counselling practice, and I can tell you the poor counsellor (and Relationships Australia) would be very concerned about the impact this decision will have on the trust they build with clients in the future.

From my understanding, it is very complex. There is the issue of confidentiality and building trust with clients so they can use the time in counselling and therapy, and have a strong working relationship with their counsellor/therapist. On the other hand, the legislation is contradictory, mainly in the areas of jurisdiction (federal versus state), but also within single Acts (two sections of the Act can say totally opposite things in this type situation). From what I have read, there is no clear cut answer, and the judge is going to have a hard time making the call on this one, as both arguments for and against a forced breach of confidentiality seem valid and within the law.

Duty of care to clients, and the strength of the client-therapist relationship should always take priority, but there are many clear cut times when this would be exchanged in favour of legal requirements (such as child abuse), but this case is not so black and white, and is also very high profile.

This case could lead to some changes to the Act to make it clearer and easier for both counsellors/therapists to apply, as well as legal professionals.

I can imagine many clients, particularly in Family counselling/court orders/divorce proceedings will be asking their counsellors for clarification on what exactly is private and safe from the peering eyes of the courts, and the counsellors been unable to give a clear answer when it comes to court orders.

I agree that this is going to be a difficult decision for the judge. My thoughts are that given that this a murder case shouldn't justice for the victim over-ride this very important confidentiality. I see it a bit like mandatory reporting of suspected child abuse. We want to see justice........ And surely that is more important at this stage than confidentiality. I was wondering whether the court could deal with it by allowing the evidence from this counsellor to be heard in a closed court like happens when rape victims give evidence. The jury can hear but the public is asked to leave the court room. I have no expertise in the law but I do understand confidentiality. A murder trial is serious. This is just my thoughts.

 

[Strangeworld]

Definitely something they'll have to consider, Seeking. Quite often confidentiality breaches in therapy are due to risk of harm to self or others - like risk of client suicide, risk of client abusing a child or harming another person (like threatening to shoot someone). These are very black and white - the therapist can report and break confidentiality. But there isn't a significant risk to someone else if confidentiality isn't breached in this case i.e. Allison is already dead. If there were any legitimate threats made in the sessions, the therapist would have been required to report ASAP. I'm not sure if they would even attempt to go down the path of potential risk to others - that would be impossible to prove unless GBC had threatened to harm someone else.

It's such a difficult decision. It would be a terrible consequence if clients didn't trust their therapist in the future if they thought it could be used against them. Clients need that sense of 'its just us' in the room when disclosing very personal issues. Sometimes this disclosure can actually save lives, change lives, etc. But in saying that, as long as a therapist is acting ethically, they should be spelling out in the very first session, what limits of confidentiality involve - one of those is the potential for court orders and access to client notes.

I have been told numerous times to be very careful what is documented - they can be seized. I've had my client notes summoned in the past, but I never heard any more about the case, so I have no idea if they were ever used. Unlikely, as I wasn't called as an expert witness.

 

[Strangeworld]

I meant to also add - if there was no Federal Family Law Act, this would be cut and dry. The counsellor would have to talk and break confidentiality. But the issue that is arising is because the FLA has conflicts within itself (across sections of the act) and also conflicts with the state legislation on when a therapist can be made to reveal information obtained or witnessed in a client session.

The main issue is can constitutional law (the Family Law Act) override what our state law says? And what part of the Family Law Act should be applied to this case (as two sections of the act potentially contradict each other in relation to breaking confidentiality and therapists been ordered to reveal information).

Hope that makes sense - I'm by no means legally minded, this is all just my interpretation as a trained psych (but not practising right now).

 

[alioop]

FAMILY LAW ACT 1975 - SECT 10B

Definition of family counselling
Family counselling is a process in which a family counsellor helps:

(a) one or more persons to deal with personal and interpersonal issues in relation to marriage; or

(b) one or more persons (including children) who are affected, or likely to be affected, by separation or divorce to deal with either or both of the following:

(i) personal and interpersonal issues;

(ii) issues relating to the care of children.


So the definition of family counselling includes just marriage counselling. Therefore the confidentially and admissibility restrictions in Sections 10 D and E would apply to marriage counselling. So we will have to wait and see how the Judge deals with this issue of the prosecution asking for it be admissible. I think they will argue that the legislation did not intend to protect the situation where where one person to the counselling is indicted for murder of the other party.

 

[alioop]

Alioop, a legal question: the Lloyd Rayney was heard by a judge instead of a jury due to the high-profile nature of the case. Is this an option for the GBC trial? Many thanks for your advice, as always.

Hi Radster, yes GBC can apply for a judge only trial but if that is his intention, he would be making that application soon to be heard as a pretrial matter. My guess is he will take his chances with a jury. Judge only trials are difficult to get in QLD. Even Dr Patel in his most recent trial where he was acquitted by a jury, was not allowed a judge only trial even though there was huge amounts of publicity including a commission of inquiry! GBC's publicity is far less that Dr Patel's.