10.11.2010
22.14 Sections 10D and 10H of the Family Law Act impose confidentiality obligations on family counsellors and FDR practitioners respectively. These persons must maintain the confidentiality of all communications made to them except in limited situations. First, communications may be disclosed with the consent of the person who made the communication or, if the person is under the age of 18, with the consent of each of the child’s parents or a court. Secondly, family counsellors and FDR practitioners may also disclose communications where the counsellor or practitioner reasonably believes that disclosure is necessary to:
protect a child from the risk of physical or psychological harm;
prevent or lessen a serious and imminent threat to the life or health of any person; or
report the commission, or prevent the likely commission, of an offence involving violence or a threat of violence to a person.[14]
22.15 In addition, family counsellors and FDR practitioners must disclose a communication if they reasonably believe that the disclosure is necessary to comply with a law of the Commonwealth or a state or territory. This includes, for example, mandatory reporting of children at risk of harm under state and territory laws.[15]
22.16 The confidentiality provisions in ss 10D and 10H apply to communications made to FDR practitioners and family counsellors while they are conducting FDR or family counselling.[16] The Commissions note that there may be a question as to whether screening and risk assessment undertaken for the purposes of FDR are actually a part of FDR and, therefore, whether s 10H protects the confidentiality of communications made during such screening and risk assessment.[17] Section 10F of the Family Law Act defines FDR as a process in which an FDR practitioner ‘helps people affected, or likely to be affected, by separation or divorce to resolve some or all of their disputes with each other’.
22.17 As discussed in Chapter 21, screening and risk assessment are key elements of FDR in practice. Their purpose is to ensure that victims of family violence are not using FDR in inappropriate circumstances, and to identify and mitigate any risk factors where FDR may be appropriate despite such risks. If screening and risk assessment are conducted by an FDR practitioner as part of FDR, then the confidentiality of communications made during such screening and risk assessment will be protected by s 10H. If, however, screening and risk assessment are conducted as a separate process preceding FDR, then the confidentiality of the communications will not be protected by s 10H. However, other obligations of confidentiality may arise in relation to screening and risk assessment communications in these circumstances—for example, equitable or contractual duties of confidence.
Serious threats to life, health or safety
22.18 While ss 10D and 10H permit disclosure with respect to threats to life and health, such perceived threats must be both serious and imminent. Further, ss 10D and 10H do not expressly permit disclosures by family counsellors and FDR practitioners in situations where disclosure is intended to avert a threat to a person’s safety.
22.19 By way of comparison, the Commissions note that safety is already included as a ground for disclosure in some laws dealing with confidentiality in other contexts.[18]
22.20 The Privacy Act 1988 (Cth) sets out principles for use and disclosure of personal information in the Information Privacy Principles (IPPs), which apply to federal public sector organisations, and in the National Privacy Principles (NPPs), which apply to private sector organisations. The IPPs and the NPPs each allow personal information to be used and disclosed if it is necessary to lessen or prevent a serious and imminent threat to an individual’s life or health.[19] The NPPs also allow use and disclosure if it is necessary to lessen or prevent:
a serious and imminent threat to an individual’s safety; or
a serious threat to public health or public safety.
22.21 In Recommendation 25–3 of its report, For Your Information: Australian Privacy Law and Practice (ALRC Report 108), the ALRC recommended that a reasonable belief that use or disclosure is necessary to lessen or prevent a serious threat to a person’s safety should be included as a ground for disclosure in principles governing use and disclosure of personal information in federal, state and territory privacy laws.[20] The ALRC also recommended that the requirement for a threat to be imminent should be removed from principles governing use and disclosure of personal information. The ALRC noted that:
[t]he current requirement that the requisite threats to an individual be imminent as well as serious sets a disproportionately high bar to the use and disclosure of personal information. This is problematic in circumstances in which there may be compelling policy reasons for the information to be used or disclosed but it is impracticable to seek consent. Agencies and organisations should be able to take preventative action to stop a threat from escalating to the point of materialisation. In order to do so, they may need to use or disclose personal information.[21]
22.22 In June 2010, the Government released an exposure draft of proposed new Australian Privacy Principles (APPs) as the first step in the implementation of reforms to the Privacy Act following the recommendations in ALRC Report 108. The proposed APPs are intended to replace the IPPs and NPPs, and to apply to both federal public sector agencies and private sector organisations.[22] Proposed APP 6 prohibits personal information collected for a particular purpose being disclosed for a different purpose, except in some limited circumstances. These exceptions include disclosure where it is reasonably believed that the information is necessary to lessen or prevent a serious threat to life, health or safety, and it is unreasonable or impracticable to obtain the affected individual’s consent to the disclosure.[23]
22.23 In the Consultation Paper, the Commissions proposed that ss 10D(4)(b) and 10H(4)(b) of the Family Law Act be amended to remove the requirement for a threat to be ‘imminent’ and to add ‘safety’ to ‘life or health’ as a ground for disclosure. This would permit family counsellors and FDR practitioners to disclose communications where they reasonably believe that disclosure is necessary to prevent or lessen a serious threat to a person’s life, health or safety.[24] Such amendments would also make ss 10D(4)(b) and 10H(4)(b) more consistent with the proposed APPs.
Submissions and consultations
22.24 Most of the submissions responding to the Commissions’ proposal supported the suggested amendments to ss 10D(4)(b) and 10H(4)(b).[25] The Law Society of New South Wales Dispute Resolution Committee, however, expressed a strong objection to this and the Commissions’ other proposals for amendments to ss 10D and 10H. The Committee was of the view that the existing provisions for disclosure operate appropriately. The Committee noted that FDR practitioners and family counsellors are mandatory reporters with respect to risks to children, and that ss 10D and 10H clearly provide for disclosure of risks relating to family violence. According to the Committee, there is no need to amend the legislation if family counsellors and FDR practitioners are properly trained to ensure they recognise when they should report communications indicating risk to a child or other person or property. The Committee also pointed out that the Family Court now has the benefit of family consultants to report what occurs during sessions with the family.[26]
22.25 With respect to the inclusion of ‘safety’ as a ground for permissible disclosure, the Australian Government Attorney-General’s Department suggested that ss 10D and 10H already permit a disclosure intended to avert a threat to a person’s safety. In this regard, the Department referred the Commissions to ss 10D(4)(a), (b) and (c) and 10H(4)(a),(b) and (c).[27] The Commissions note that the provisions referred to by the Attorney-General’s Department refer to ‘risk of harm’ (in relation to a child), ‘threat to the life or health of a person’, and ‘violence or a threat of violence to a person’.
22.26 As noted above, most of the submissions supported the suggested amendments to ss 10D(4)(b) and 10H(4)(b). Submissions also suggested that the impact of such disclosures on the immediate safety of women should be taken into account,[28] and that family counsellors and FDR practitioners should make appropriate or immediate referrals to services such as police, crisis support services and legal assistance,[29] and develop safety plans in conjunction with the person or persons at risk.[30]
22.27 Women’s Legal Services NSW, in general comments about disclosure and information sharing, also referred to the potential risk of harm to the person disclosing violence, and the importance of consent to disclosure of information.[31] The Office of the Privacy Commissioner (OPC) referred to the Australian Government’s position that those disclosing personal information to prevent or lessen serious threats should consider seeking consent first.[32] In the OPC’s view, this approach helps to ensure that the affected individual maintains an appropriate degree of control over the disclosure of his or her personal information. Nevertheless, noting that it was consistent with the ALRC’s recommendation in ALRC Report 108, OPC expressed support for the Commissions’ proposal, and suggested that the development of guidance material may be beneficial in assisting family counsellors and FDR practitioners to determine the seriousness of a threat and to understand when disclosures may be made without consent.[33]
Commissions’ views
22.28 In the Commissions’ view, there are compelling policy reasons to remove the imminence requirement in ss 10D(4)(b) and 10H(4)(b). Family violence sometimes manifests as controlling behaviour over a number of years.[34] The resulting threat may, therefore, be very difficult to characterise as ‘imminent’ even where it is ‘serious’.
22.29 Safety has been described as ‘the central concern of domestic violence intervention’.[35] The Commissions’ proposal to refer expressly to ‘safety’ in ss 10D(4)(b) and 10H(4)(b) would make it clear that a family counsellor or FDR practitioner is permitted to disclose communications where he or she reasonably believes that disclosure is necessary to prevent or lessen a serious threat to a person’s safety. The Commissions note that, in the view of the Australian Government Attorney-General’s Department, ss 10D and 10H do cover safety. While it may be arguable that the particular provisions referred to already include, by implication, threats to a person’s safety, the Commissions are of the view that in order to clarify and put this matter beyond doubt, ‘safety’ should be expressly recognised as a permissible basis for the disclosure of information.
22.30 The Commissions note that the proposed removal of the imminence requirement and the addition of threats to safety as an express ground for disclosure, is consistent with the reasoning in Recommendation 25–3 of ALRC Report 108 and with proposed developments in federal privacy law.
22.31 The Commissions are of the view that it is unnecessary to impose a statutory requirement to consider seeking consent before making a disclosure. The Commissions agree that, where reasonable and practicable, FDR practitioners and family counsellors should seek consent before making a disclosure. However, the Commissions note the OPC’s comment, that ‘[w]here there is a serious threat to a person’s life, health or safety, disclosure without consent will generally be warranted’.[36] FDR practitioners and family counsellors will need to have reasonable grounds for believing that the disclosure is necessary to lessen or prevent the threat, and not merely helpful, desirable, or convenient. Where it is possible to obtain consent, then disclosure without consent will not be necessary.
22.32 The Commissions agree with the OPC that guidance material may be beneficial in assisting family counsellors and FDR practitioners to determine the seriousness of a threat and to identify when a disclosure may be made without consent. The Commissions are mindful of concerns raised about the additional risk to victims and potential victims of family violence that may sometimes result from such disclosures. Guidance material should, in the Commissions’ view, encourage family counsellors and FDR practitioners making disclosures with respect to threats to life, health, or safety to also refer family violence victims and those at risk to appropriate support services, and to work with them to develop appropriate safety plans.
Recommendation 22–1 Sections 10D(4)(b) and 10H(4)(b) of the Family Law Act 1975 (Cth) should be amended to permit family counsellors and family dispute resolution practitioners to disclose communications made during family counselling or family dispute resolution, where they reasonably believe that disclosure is necessary to prevent or lessen a serious threat to a person’s life, health or safety.
Recommendation 22–2 The Australian Government Attorney-General’s Department, in consultation with family dispute resolution practitioners and family counsellors, should develop material to guide family dispute resolution practitioners and family counsellors in determining the seriousness of a threat to an individual’s life, health or safety, and identifying when a disclosure may be made without consent. Such guidance should also encourage family dispute resolution practitioners and family counsellors to address the potential impact of disclosure on the immediate safety of those to whom the information relates, and for that purpose:
(a) refer those at risk to appropriate support services; and
(b) develop a safety plan, where appropriate, in conjunction with them.
Threats to a child’s welfare
22.33 In the Consultation Paper, the Commissions considered whether ss 10D and 10H should be amended to permit release of FDR and family counselling information to prevent or lessen a serious threat to a child’s welfare.[37] The Commissions noted that the Community and Disability Services Ministers’ Advisory Council submitted to the ALRC Inquiry into secrecy laws that, in the context of child protection, the threshold for release of information on public interest grounds should be whether the release is ‘necessary to prevent or lessen a threat to health, safety or welfare of a person’.[38] The Council emphasised that the inclusion of ‘welfare’ was particularly relevant in child protection. The ALRC noted that the desirability and operation of these types of exceptions ‘depend on the context in which they operate’ and that there ‘may be circumstances in which it is appropriate for exceptions of this kind to cover a person’s welfare, as well as life, health or safety’.[39]
22.34 In addition to ss 10D and 10 H, there are other provisions in the Family Law Act that allow disclosure of information relating to harm or potential harm to children. Section 67ZA(2) of the Family Law Act requires FDR practitioners and family counsellors to report child abuse—or the risk of child abuse—as defined by the Family Law Act.[40] While mandatory reporting obligations under state and territory child protection legislation are broader in scope, their application differs across jurisdictions. There are differences between jurisdictions with respect to who is obliged to report, the type and extent of the harm which gives rise to the reporting obligation, and whether the obligation applies to future risk as well as past or present instances of harm.[41] Section 67ZA(3) of the Family Law Act, which permits—but does not require—disclosure of information on the grounds of reasonable suspicion of past or future risk of ill-treatment of a child and past or future risk of exposure to or subjection of a child to psychologically harmful behaviour, applies consistently to FDR practitioners and family counsellors throughout Australia.
22.35 Section 67ZA(3) does, however, limit to whom information may be directly disclosed. Unlike ss 10D and 10H, s 67ZA(3) allows for disclosure to a ‘prescribed child welfare authority’ only.[42] Section 67ZA(3) does not provide a direct route for passing information from an FDR practitioner or family counsellor to police or to the courts.[43]
Submissions and consultations
22.36 A number of stakeholders expressed support for an additional ground for disclosure relating to threats to a child’s welfare.[44] Other stakeholders, however, raised some concerns and queried the need for an additional ground.[45] Stakeholders argued that ss 10D and 10H, and particularly ss 10D(4)(a) and 10H(4)(a) (which allow for disclosure with respect to risk of physical or psychological harm to a child), adequately provide for disclosure with respect to child welfare concerns.[46] The OPC noted the difficulty of defining ‘welfare’ and queried what additional information would be disclosed under such an exception that could not be disclosed under the current framework for disclosure and the amended life, health and safety exception proposed by the Commissions.[47]
22.37 National Legal Aid expressed its reservations by referring to general concerns about extending disclosure grounds, including the complexity of issues associated with disclosure of information from family counselling and FDR, the possibility that greater disclosure would bring a wide range of risks both to the confidentiality of the FDR process and more specifically to victims of violence, and that it would not remove the need for ongoing screening. In addition, National Legal Aid generally noted the need for joint consultations with relevant stakeholders to ensure existing provisions for disclosure are understood and appropriate solutions are identified to ensure that the court can make appropriate decisions at an early stage.[48] The Dispute Resolution Committee of the Law Society of New South Wales commented that the legislation would not require amendment if family counsellors and FDR practitioners were properly trained to ensure that they ‘competently recognise’ when they should report disclosures of risk, especially in relation to children, and that they act on such disclosures.[49]
Commissions’ views
22.38 The Commissions have considered the relevance of ‘welfare’ with respect to child protection and note the existing legislative grounds for disclosure in relation to child protection concerns. In addition to ss 10D(4)(a) and 10H(4)(a), which allow for disclosure to protect a child from risk of physical or psychological harm, other provisions in the Family Law Act and in state and territory child protection legislation require or permit certain professionals to report concerns about harm or risk of harm to children to the relevant state and territory authorities.
22.39 The Commissions have considered whether the scope for disclosure provided by the combination of relevant legislative provisions obviates the need for a specific additional ground for disclosure relating to child welfare concerns. The range covered by the relevant provisions under the Family Law Act includes: information relating to risk of physical harm; past or future risk of psychological harm; past or future risk of ill-treatment; child abuse or risk of child abuse; offences or potential offences involving violence; and serious and imminent threats to life or health. State and territory child protection legislation provisions relating to reporting of harm and risk of harm add to this range of provisions for disclosure.
22.40 In particular, the Commissions note that the reference in s 67ZA(3) of the Family Law Act to past or future risk of psychological harm or ill-treatment seems to allow for relatively broad grounds for disclosure of FDR and family counselling communications in appropriate circumstances.[50] Further, while s 67ZA(3) does not provide a direct route for passing information from an FDR practitioner or family counsellor to police or to the courts, disclosure by an FDR practitioner or family counsellor to a child welfare authority may result in that agency referring the matter to police for investigation or bringing the matter before a court.
22.41 In the Commissions’ view, the range of information covered by the combination of relevant legislative provisions referred to above would, to a very significant degree, encompass information relating to serious threats to a child’s welfare. The arguments in favour of extending the circumstances in which FDR practitioners and family counsellors disclose information relating to a child’s welfare do not, on balance, outweigh the public interest in protecting the integrity and efficacy of FDR and family counselling, which are important in securing children’s welfare.
22.42 The Commissions acknowledge that the multiplicity of provisions relevant to disclosure of information about actual or potential abuse, harm or ill-treatment of children spread across the Family Law Act and state and territory legislation may cause some confusion amongst FDR practitioners and family counsellors. The Commissions consider, therefore, that there may be value in education and training for FDR practitioners and family counsellors to ensure that these provisions are understood and appropriately acted upon.
Recommendation 22–3 Bodies responsible for the education and training of family dispute resolution practitioners and family counsellors should develop programs to ensure that provisions in the Family Law Act 1975 (Cth) and in state and territory child protection legislation regulating disclosure of information relating to actual or potential abuse, harm or ill-treatment of children are understood and appropriately acted on.
Conduct which may constitute grounds for a protection order
22.43 Another exception to the confidentiality obligations of FDR practitioners and family counsellors, provided in ss 10D(4)(c) and 10H(4)(c) of the Family Law Act, allows disclosure of FDR and family counselling communications to prevent the likely commission of an offence involving violence or a threat of violence to a person. In the Consultation Paper, the Commissions proposed amending ss 10D(4)(c) and 10H(4)(c) to allow family counsellors and FDR practitioners to disclose communications where they reasonably believe that disclosure is necessary to report conduct that they reasonably believe constitutes grounds for a protection order under state and territory family violence legislation.[51]
22.44 The clearest application of such a reform would be where police officers apply directly for, or—in those jurisdictions where they are empowered to do so—issue, protection orders. A family counsellor or FDR practitioner would have the option of reporting this information to the police. Police could then determine whether to apply for or—where empowered—issue, a protection order.[52]
Submissions and consultations
22.45 Many stakeholders expressed support for this proposal.[53] The Family Issues Committee of the Law Society of New South Wales referred to its general comments about the effect of the Family Law Act’s family counselling and FDR confidentiality and admissibility provisions in shielding family violence. In the Committee’s view, court orders would be less responsive to family violence if courts did not have access to information about family violence.[54] Others argued that this should be a mandatory, rather than permissible, ground for disclosure.[55] National Legal Aid was of the view that, in relation to FDR, this proposal should only apply where the conduct arises during the FDR, and not to communications about past conduct.[56]
22.46 The OPC indicated support for this proposal, but noted that where conduct may constitute grounds for a protection order, it was likely that it would fall within the proposed exception to confidentiality for threats to life, health or safety.[57] The Queensland Law Society questioned the necessity for the proposed amendments and expressed the view that the existing exception for disclosure to report or prevent the commission of offences involving violence or threats of violence was adequate.[58]
22.47 Other submissions argued that such an exception to confidentiality allowed too much discretion;[59] that it could undermine the purpose of FDR[60]and the impartial, facilitative role of the FDR practitioner;[61] that parties might become reluctant to come forward with all relevant information in FDR;[62] and may cease to attend FDR or family counselling.[63]
22.48 The FRSA was of the view that this proposal was at odds with the FDR practitioner’s and family counsellor’s role of working with the family and building trust with parents and children at risk. The FRSA noted that FDR practitioners and family counsellors will:
inform parties at risk what action can be taken and offer to provide support but may also respect the right of the victim or potential victim to determine when and how to take protective action, rather than impose a course of action—if only to keep the victim engaged in support and working through the many emotions they may be experiencing.[64]
Commissions’ views
22.49 The existing provisions in the Family Law Act and in state and territory child protection legislation, discussed above, provide a number of grounds for disclosure by FDR practitioners and family counsellors of information relating to those at risk. The Commissions’ recommended amendments to ss 10D(4)(b) and 10H(4)(b)—to add serious threats to safety, and remove the requirement for threats to be imminent—will add to these grounds.[65] The Commissions are of the view that, to a significant degree at least, disclosures about conduct that may constitute grounds for a protection order are already authorised under these provisions.
22.50 The Commissions have considered whether there is a need to permit disclosures for the purpose of reporting conduct which may constitute grounds for a protection order, but which would not fall within the provisions discussed above. In this respect, the Commissions are mindful of the concerns raised about the potential for disclosures to increase, rather than decrease, risks. Where conduct might constitute grounds for a protection order, but would not fall within the provisions for disclosure discussed above, the Commissions are of the view that the risk of inflaming the situation and potentially placing victims of family violence in greater danger by disclosing communications about such conduct, is not warranted. In such cases, the arguments in favour of amending ss 10D(4)(c) and 10H(4)(c) in order to permit FDR practitioners and family counsellors to report conduct reasonably believed to constitute grounds for a protection order do not outweigh the importance of protecting the integrity and the efficacy of FDR and family counselling, which are also important in securing outcomes that protect family violence victims and those at risk of family violence.
22.51 The Commissions consider, therefore, that there is no need for amendments to ss 10D(4)(c) and 10H(4)(c) in order to permit FDR practitioners and family counsellors to disclose communications for the purpose of reporting conduct reasonably believed to constitute grounds for a protection order. The Commissions consider, however, that FDR practitioners and family counsellors have an important role to play in advising family violence victims and those at risk of family violence about appropriate support services. They should also develop a risk management strategy, to ensure safety in FDR and counselling processes. In this respect, the Commissions note the comment of the FRSA, that FDR practitioners and family counsellors do inform parties they consider to be ‘at risk’ of options available to them, and offer to provide support.
[14] In these circumstances, disclosure is permitted rather than required.
[15] For more on mandatory reporting obligations in the context of child protection, see Ch 20 and D Higgins, L Bromfield, Nick Richardson, Prue Holzer and Claire Berlyn, National Child Protection Clearinghouse Resource Sheet: Mandatory Reporting of Child Abuse and Neglect (2010), prepared for the Australian Institute of Family Studies.
[16] Family Law Act 1975 (Cth) ss 10D(1), 10H(1).
[17] Screening and risk assessment for the purposes of FDR are discussed in Ch 21.
[18] See, eg, Aged Care Act 1997 (Cth) s 86–2; Customs Administration Act 1985 (Cth) s 16.
[19]Privacy Act 1988 (Cth) s 14, IPPs 10(1)(e), 11(1)(c); sch 3, NPP 2.1(e)(i).
[20] Australian Law Reform Commission, For Your Information: Australian Privacy Law and Practice, Report 108 (2008), Rec 25–3.
[21] Ibid, [25.83], Rec 25–3.
[22]Exposure Draft: Australian Privacy Principles 2010 (Cth). See also Companion Guide Exposure Draft Australian Privacy Principles 2010 (Cth).
[23]Exposure Draft: Australian Privacy Principles 2010 (Cth). In its first stage response to Rec 25–3 of ALRC Report 108, the Australian Government suggested that disclosure of personal information necessary to prevent or lessen a serious threat should be permitted only after consent has first been sought, where seeking consent is reasonable and practicable: Australian Government, Enhancing National Privacy Protection—Australian Government First Stage Response to the Australian Law Reform Commission Report 108 For Your Information: Australian Privacy Law and Practice (2009). This consent element was subsequently incorporated into the draft Australian Privacy Principles.
[24] Consultation Paper, Proposal 10–8.
[25] National Legal Aid, Submission FV 232, 15 July 2010; Family Relationship Services Australia, Submission FV 231, 15 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Family Issues Committee; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; D Bryant, Chief Justice of the Family Court of Australia and J Pascoe, Chief Federal Magistrate of the Federal Magistrates Court of Australia, Submission FV 168, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Confidential, Submission FV 164, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; Confidential, Submission FV 160, 24 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 82, 2 June 2010; Better Care of Children, Submission FV 72, 24 June 2010; National Peak Body for Safety and Protection of Parents and Children, Submission FV 47, 24 May 2010; M Condon, Submission FV 45, 18 May 2010. Stakeholders also expressed the view that disclosure on these grounds should be mandatory and not just permissible: Confidential, Submission FV 96, 2 June 2010; C Pragnell, Submission FV 70, 2 June 2010.
[26] The Committee also noted provisions with respect to independent legal representatives for children (ss 10D(4)(f), 10H(4)(f) and 68L of the Family Law Act) and commented that if a parent’s solicitor is concerned about a child, the solicitor should seek the appointment of an independent children’s lawyer under s 68L: Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Dispute Resolution Committee.
[27] Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.
[28] National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.
[29] National Legal Aid, Submission FV 232, 15 July 2010.
[30] Family Relationship Services Australia, Submission FV 231, 15 July 2010. The FRSA supported this proposal but also noted that unless disclosure was reasonably likely to result in protective action, the disclosure could inflame the situation and serve to increase rather than decrease the risk. The FRSA suggested the development of a safety plan so that any action taken does not inadvertently make the situation worse.
[31] Women’s Legal Services NSW, Submission FV 182, 25 June 2010. It should be noted that Women’s Legal Services NSW’s comment about consent to disclosure was made in the context of comments about the discloser’s control of use of the information in family law proceedings.
[32] In the Consultation Paper, the Commissions noted that in response to this recommendation, the Australian Government had agreed that requiring a serious threat to be imminent can be too restrictive. However, the Government noted some stakeholder views that the ‘imminence’ requirement operated as an important safeguard against the mishandling of personal information. The Government suggested a compromise position, which would permit the disclosure of personal information where necessary to prevent or lessen a serious—but not necessarily imminent—threat only after consent has first been sought, where seeking consent is reasonable and practicable. SeeAustralian Government, Enhancing National Privacy Protection—Australian Government First Stage Response to the Australian Law Reform Commission Report 108 For Your Information: Australian Privacy Law and Practice (2009).
[33]Office of the Privacy Commissioner, Submission FV 147, 24 June 2010.
[34] Access Economics, The Cost of Domestic Violence to the Australian Economy, Part I (2004), 3. See also, Ch 5 of this Report.
[35] L Laing, Risk Assessment in Domestic Violence (2004), Australian Domestic & Family Violence Clearinghouse, 1.
[36] This comment was made by the OPC in the context of its discussion about Proposal 10–9 of the Consultation Paper: Office of the Privacy Commissioner, Submission FV 147, 24 June 2010.
[37] Consultation Paper, Question 10–14.
[38] See Australian Law Reform Commission, Secrecy Laws and Open Government in Australia, Report 112 (2009), [10.102].
[39] Ibid, [10.107].
[40] Section 67ZA(2) of the Family Law Act requires disclosure of reasonable suspicion of child abuse or the risk of child abuse to a ‘prescribed welfare authority’. The definition of ‘child abuse’ in s 4(1) refers to assault, including sexual assault, and involving a child in sexual activity.
[41] See Ch 20.
[42] Section 4(1) of the Family Law Act defines ‘prescribed child welfare authority specifically’ in relation to ‘abuse of a child’, but not in relation to ill-treatment or psychological harm. The Family Law Regulations 1984 (Cth) provide no further definition of ‘prescribed child welfare authority’.
[43] Information is not admissible as evidence simply because it may be disclosed to a court in accordance with ss 10D and 10H. On this point see ss 10D(6) and 10H(7).
[44] Department of Premier and Cabinet (Tas), Submission FV 236, 20 July 2010; Family Relationship Services Australia, Submission FV 231, 15 July 2010; Legal Aid NSW, Submission FV 219, 1 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Family Issues Committee; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010; M Condon, Submission FV 45, 18 May 2010.
[45] National Legal Aid, Submission FV 232, 15 July 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Dispute Resolution Committee; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Office of the Privacy Commissioner, Submission FV 147, 24 June 2010.
[46] Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Dispute Resolution Committee; Queensland Law Society, Submission FV 178, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010. Aboriginal Family Violence Prevention and Legal Service Victoria also indicated it is reluctant to support enhanced disclosure because it has concerns about the standards of FDR with respect to family violence.
[47] Office of the Privacy Commissioner, Submission FV 147, 24 June 2010. See Rec 22–1.
[48] National Legal Aid, Submission FV 232, 15 July 2010. The Dispute Resolution Committee of the Law Society of New South Wales also noted the need for training of family counsellors and FDR practitioners to ensure they recognise when they should disclose information relating to risks to children: Law Society of New South Wales, Submission FV 205, 30 June 2010.
[49] Law Society of New South Wales, Submission FV 205, 30 June 2010.
[50] Psychological harm and ill-treatment are not defined in the Family Law Act.
[51] Consultation Paper, Proposal 10–9.
[52] The role of police in applying for or issuing protection orders is considered in Ch 9.
[53] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Family Issues Committee, Law Society of New South Wales, Submission FV 205, 30 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; Confidential, Submission FV 162, 25 June 2010; The Central Australian Aboriginal Family Legal Unit Aboriginal Corporation, Submission FV 149, 25 June 2010; Justice for Children, Submission FV 148, 24 June 2010; Domestic Violence Victoria, Federation of Community Legal Centres Victoria, Domestic Violence Resource Centre Victoria, Victorian Women with Disabilities Network, Submission FV 146, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 96, 2 June 2010;Confidential, Submission FV 82, 2 June 2010; National Peak Body for Safety and Protection of Parents and Children, Submission FV 47, 24 May 2010; M Condon, Submission FV 45, 18 May 2010. The Family Issues Committee of the Law Society of New South Wales expressed strong support for this proposal and referred to its general arguments in support of amendments to ss 10D, 10E, 10H ad 10J: Law Society of New South Wales, Submission FV 205, 30 June 2010.
[54] Law Society of New South Wales, Submission FV 205, 30 June 2010.
[55] Confidential, Submission FV 96, 2 June 2010; C Pragnell, Submission FV 70, 2 June 2010.
[56] National Legal Aid, Submission FV 232, 15 July 2010.
[57] The OPC was of the view that, where reasonable and practicable, family counsellors and FDR practitioners should seek consent before disclosing information under this proposed exception to confidentiality: Office of the Privacy Commissioner, Submission FV 147, 24 June 2010.
[58] Queensland Law Society, Submission FV 178, 25 June 2010.
[59] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.
[60] Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010.
[61] Law Society of New South Wales, Submission FV 205, 30 June 2010, referring to the views of the Dispute Resolution Committee.
[62] Victorian Aboriginal Legal Service Co-operative Ltd, Submission FV 179, 25 June 2010. Another legal service provider indicated general reservations about any amendments ‘which compromise mediation processes as a safe and confidential space where everything can be frankly discussed and all relevant information put on the table without fear of repercussions’: Confidential, Submission FV 164, 25 June 2010.
[63] Queensland Law Society, Submission FV 178, 25 June 2010.
[64] Family Relationship Services Australia, Submission FV 231, 15 July 2010.
[65] Rec 22–1.