Purpose of the Bill

The purpose of the Family Law Amendment (Information Sharing) Bill 2023 (the Bill) is to amend the Family Law Act 1975 to introduce a new framework for information sharing under the Family Law Act.

The Bill is aimed at improving access to information between the family law courts and state and territory family violence and child protection systems during family law proceedings. The amendments would give effect to the National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems (National Framework).[1]

Background

The Bill is considered to be complementary to the reforms proposed in the Family Law Amendment Bill 2023.[2] Like that Bill, it is informed by the Australian Law Reform Commission’s (ALRC) 2019 report Family Law for the Future – An inquiry into the Family Law System,[3] and reflects the Government response to the 2021 Joint Select Committee on Australia’s Family Law System.[4]  

Further background is provided in the Bills Digest for the Family Law Amendment Bill 2023.[5]

Information sharing in family law

The problem of sharing relevant information in relation to family law, family violence and child protection matters across federal and state jurisdictions has been identified in a number of inquiries and reports.[6]

One of the recent inquires, the 2019 ALRC inquiry into Australia’s family law system, highlighted these problems and made recommendations for reform. As the ALRC observed:

The federal family courts have limited investigative powers to follow up allegations made in family law proceedings that indicate potential risks to the parties, their children and third parties. The federal family courts are reliant on receiving information from state and territory courts and agencies about risks to families and children to inform decision making and better protect against risk. In particular, the federal family courts often require information from child protection departments and police in order to arrive at appropriate orders.  The sharing of this information with federal family courts is limited by statutory provisions at the state and territory level that prescribe the circumstances in which information may be shared, and with which agencies.

[…] 

Currently, where responsibilities for families and children are divided between jurisdictions, there are no coercive powers available to enforce information sharing between courts and entities across jurisdictions about high risk families.[7]

The ALRC acknowledged the work already being done nationally and within jurisdictions, by governments and key stakeholders who ‘have taken action to improve information sharing and collaboration between the systems in an attempt to minimise the impacts caused by the jurisdictional gap’, including:

• co-location of child protection practitioners in family court registries
• implementation of information sharing agreements between stakeholders in the systems, in particular the family courts and child protection departments
• convening of collaboration meetings between key stakeholders in the systems facilitated by the Commonwealth Attorney-General’s Department
• establishment of the Council of Attorneys-General Family Violence Working Group to develop measures to improve the interaction between the systems, including improving information sharing.[8]

The ALRC, while acknowledging the valuable role that such initiatives play, was of the view that 'information sharing is no panacea to the problems caused by the jurisdictional gap, regardless of how efficient and effective information sharing is between the systems’.[9]

The ALRC therefore recommended that:

•   The Australian Government should work with state and territory governments to develop and implement a national information sharing framework to guide the sharing of information about the safety, welfare, and wellbeing of families and children between the family law, family violence, and child protection systems.
•   The framework should include:
• the legal framework for sharing information;
• relevant federal, state, and territory court documents;
• child protection records;
• police records;
• experts’ reports; and
• other relevant information. (Recommendation 2). [10]

The National Framework and the Bill respond to this recommendation.

The National Framework

The National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems (the Framework) was formally endorsed at the Meeting of Attorneys-General (now the Standing Council of Attorneys-General) on 12 November 2021.[11] A protocol to guide the implementation of the National Framework was agreed to at that meeting.[12] The protocol sets out the objectives and principles of the Framework and also contains the operational details of how information will be shared. The protocol states that the objective of the National Framework is:

… to promote the safety and wellbeing of adults and children affected by family violence, child abuse and neglect, and support informed and appropriate decision-making in circumstances where there is, or may be, a risk of family violence, child abuse or neglect.[13]

The Bill gives effect to the legislative reforms required to implement the National Framework.

Committee consideration

At the time of writing, the Bill has not been referred to a committee.

Senate Standing Committee for the Scrutiny of Bills

At the time of writing, the Committee has not reported on the Bill.

Policy position of non-government parties/independents

At the time of writing, non-government parties and independents do not appear to have commented on the Bill.

Position of major interest groups

At the time of writing, there had been very little public comment on the Bill.

Financial implications

The Explanatory Memorandum states that funding for the family law courts and state and territory information sharing agencies to support enhanced information sharing under the National Framework, and through the co-location of state and territory police and child protection officials in family law court registries, was provided as part of the 2019–20 and 2021–22 Budgets, and the 2021–22 Mid-Year Economic Financial Outlook.[14] Current funding arrangements will terminate 30 June 2025.[15]

According to the Women’s Budget Statement from the 2021–22 Budget, the Government funding for this new initiative was $29.0 million over four years.[16]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[17]

Parliamentary Joint Committee on Human Rights

At the time of writing, the Committee has not reported on the Bill.

Key issues and provisions

Information sharing

Section 69ZW in Part VII of the Family Law Act currently provides for information sharing in relation to child related proceedings between the family courts and relevant state/territory agencies. Item 8 repeals this provision as it is to be replaced by a new expanded information scheme as introduced in item 7, described below.

The Explanatory Memorandum explains the limitations of existing section 69ZW, stating:

[it] is limited in scope, focussing on notifications or investigations of child abuse or family violence affecting a child to whom proceedings relate. As the understanding of the prevalence and impacts of family violence, child abuse and neglect has grown, this limited scope has proven insufficient in providing access to all relevant information to inform decision-making. This has increasingly led to a reliance on inconsistent State and Territory information sharing practices, and party-initiated subpoena processes, which can be expensive, complex, lengthy and resource-intensive for the courts, agencies, and parties, particularly where self-represented.[18]

Item 7 inserts new Subdivision DA–Orders for information etc. in child-related proceedings into Division 8 of Part VII of the Family Law Act. It includes provisions allowing for two different types of information sharing orders:

• orders for the particulars of documents or information held, and
• orders for the production of documents or information held.

The court may make such orders at any time after the commencement of child-related proceedings and before making final orders (proposed section 67ZBJ).

Orders for particulars of documents or information relating to certain matters

Proposed subsection 67ZBD(1) provides that the court may make an order, in child‑related proceedings, requiring a prescribed information sharing agency to:

• inform the court whether the agency has in its possession or control any documents or information relating to a certain matter, and
• if it has—give the court particulars of the documents or information.

Proposed subsection 67ZBD(2) provides that the particulars of documents or information must relate to the following matters:

• abuse, neglect or family violence to which a child to whom the proceedings relate has been subjected or exposed, or to which the court suspects the child has been subjected or exposed
• family violence to which a party to the proceedings has been exposed, or in which a party to the proceedings has engaged, to the extent it may affect a child to whom the proceedings relate
• any risk or potential risk of a child to whom the proceedings relate being subjected or exposed to abuse, neglect or family violence
• any risk or potential risk of a party to the proceedings being subjected to, or engaging in, family violence, to the extent any such family violence may affect a child to whom the proceedings relate.

The order may include a description of the kinds of relevant documents or information that the court considers the agency may have in its possession or control (proposed subsection 67ZBD(3)). Examples of such descriptions are:

• notifications to the agency of suspected abuse of a child to whom the proceedings relate
•  notifications to the agency of suspected abuse, by a party to the proceedings, of any other child (proposed subsection 76ZBD(4)).

An ‘information sharing agency’ is defined as an agency, or a part of an agency, of a state or territory, or part of a Commonwealth agency that provides services on behalf of a state or territory, prescribed in the Family Law Regulations 1984 (proposed section 67ZBC). The Explanatory Memorandum states that the types of organisations to be prescribed would include those that:

• have investigative power, or responsibility for the prevention of family violence, child abuse and neglect matters, or
• hold information which is directly relevant to the assessment and mitigation of family violence, neglect or abuse risk for a child concerned in proceedings, or a party to proceedings.

These organisations would include state and territory child protection, policing and firearms authorities but not state courts.[19]

The definitions of ‘child abuse’ and ‘family violence’ currently in the Family Law Act will apply. ‘Neglect’ is not defined in the Act, however the position of the Explanatory Memorandum to the Family Law Amendment (Shared Parental Responsibility) Act 2006, which inserted the term, will apply.[20]

Proposed subsection 67ZBD(5) provides that the agency may also, on its own initiative, give the court particulars of other documents or information in its possession concerning any of these listed matters. Where an agency does this, it must consider:

• redacting any ‘protected material’ or
• not providing any information or particulars to the extent that it would reveal ‘protected material’ (proposed subsection 67ZBD(6)).

Orders to provide documents or information relating to certain matters

Proposed section 67ZBE introduces a new order requiring the production of documents or information held by prescribed information sharing agencies, which relate to family violence, child abuse or neglect risk in child-related proceedings.

It is drafted in a similar way to proposed section 67ZBD described above. Rather than targeting the provision of particulars of documents or information in the control or possession of an agency (meaning a summary, short description or outline), proposed section 67ZBE concerns the production and provision of the documents or information themselves.[21]

Legal exemptions and safeguards for protected material

Proposed section 67ZBF provides that information sharing agencies are not required (but are allowed) to provide particulars or information or produce documents to a court under proposed sections 67ZBD and 67ZBE where the disclosure contains ‘protected material’. Protected material is information:

• that is the subject of legal professional privilege
• that discloses, or enables a person to ascertain, the identity of a person who communicated information to the agency in confidence (such as a confidential source of information or a notifier of suspected child abuse or family violence), or
• the disclosure of which would:
  • endanger a person’s life or present an unreasonable risk of harm to a person (including physical, non-physical and psychological harm)
  • prejudice legal proceedings (including proceedings in a tribunal and a coronial inquiry, investigation and inquest)
  • contravene a court order or law that restricts the publication or other disclosure of information in connection with legal proceedings, or
  • be contrary to the public interest.

If an agency chooses not to provide the court with particulars or documents or information on the grounds that it may disclose protected material, it must inform the court, and state which category of protected material applies.

Proposed section 67ZBG provides that an agency may alert the court to any risks the court should consider when disclosing the particulars, documents or information provided in response to an order under proposed sections 67ZBD and 67ZBE. The risks could be to:

• a party in proceedings
• a child to whom the proceedings relate
• a person who communicated information to the agency in confidence
• any other person.

Proposed section 67ZBH requires a court to admit into evidence any particulars, documents or information provided in response to the new orders which they intend to rely upon when determining a matter. In admitting information into evidence, the court must not disclose, except in limited circumstances, the identity of a person who made a notification of suspected child abuse or family violence to an information sharing agency.

Information sharing agencies and the courts will be required to have regard to a set of information sharing safeguards when handling, storing, accessing or sharing information under the relevant provisions. The safeguards will be prescribed by amendments to the Family Law Regulations 1984 (proposed section 67ZBI). The Explanatory Memorandum describes the types of safeguards that may be included in the regulations.[22]

Proposed section 67ZBL provides the provisions in the Bill and related regulations are to be reviewed within 12 months of commencement, with the Minister to table a copy of the report of the review in each House of Parliament within 15 sitting days after the report has been completed.