Your Obligations Under Section 10J When Making a Referral

Understanding Your Obligations Under Section 10J When Making a Referral as an FDRP

Family Dispute Resolution Practitioners (FDRPs) regularly make referrals to external professionals, psychologists, counsellors, medical practitioners, drug and alcohol specialists, parenting programs, and more. These referrals are often essential to support client wellbeing, enhance capacity to participate in FDR, or address risk concerns.

But with every referral comes a legal obligation that is sometimes overlooked: your duty under section 10J of the Family Law Act (1975).

Section 10J governs the admissibility of communications made during FDR and during consultations with professionals to whom an FDRP has referred a client. Understanding this section and communicating it correctly to the professional is not optional. It is a statutory requirement.

Let’s break down what FDRPs must know and must do.

1. What Section 10J Actually Says

Section 10J sets out strict rules about the confidentiality and admissibility of communications made:

• to an FDRP during FDR, and
• to a professional to whom the FDRP has referred a client.

Under s10J(1), anything said or admitted in the presence of:

• the FDRP, or
• the professional providing services following the referral, is not admissible in any court or tribunal.

This protection is broad and powerful. It ensures that clients can engage openly in therapeutic or professional processes without fear that their words will later be used against them in litigation.

However, there are two important exceptions:

• Disclosures or admissions indicating child abuse or risk of abuse (s10J(2)), unless the court already has sufficient evidence from other sources.
• Information necessary for issuing a s60I certificate (s10J(3)).

These exceptions align with the broader safety and reporting obligations that FDRPs already navigate.

2. Your Mandatory Obligation Under Section 10J(4)

This is the part many practitioners miss.

Under s10J(4):

A family dispute resolution practitioner who refers a person to a professional must inform the professional of the effect of this section.

This means that every time you make a referral, you must:

• Tell the professional that anything the client says during their consultation is not admissible in court, and
• Explain that this protection arises under s10J of the Family Law Act.

This is not a courtesy. It is a legal requirement.

Why this matters

Professionals outside the family law system, GPs, psychologists, counsellors, may not be familiar with the Family Law Act. Without your explanation, they may:

• incorrectly assume their notes could be subpoenaed
• misunderstand the confidentiality framework
• inadvertently mislead clients about the legal status of their communication

By informing them, you protect the integrity of the process and ensure compliance with the Act.

3. Best Practice for FDRPs When Making a Referral

To meet your obligations under s10J(4), consider adopting the following practices:

Include a standard 10J statement in all referral letters

For example:

This referral is made under the provisions of the Family Law Act (1975). I draw your attention to section 10J of the Act, which provides that anything said by the client during your professional consultation is not admissible in any court or tribunal. Please note this protection when working with the client.

This ensures clarity and consistency.

Explain the purpose of the referral to the client

Clients should understand:

• why the referral is being made
• how confidentiality applies
• what information (if any) may be shared back with the FDRP

Document that you have informed the professional

A simple note in your case file is sufficient.

 

When FDRPs comply with their obligations, they strengthen the safety and integrity of the entire dispute resolution process. Section 10J is more than a technical legal provision, it is a cornerstone of ethical and effective FDR practice. By ensuring that every professional you refer to understands the effect of this section, you uphold your statutory obligations and support better outcomes for families.