Information flow to the family violence system

Notification of parenting orders

30.83 With the exception of the ACT, the family violence legislation in each of the states and territories includes provisions for the state and territory courts to gain access to information about parenting orders.^[95] However, the legislation differs in relation to the procedure by which the information is obtained. Most commonly, the legislation imposes obligations on persons who apply for a protection order, or a variation of such an order, to inform the court of any relevant parenting order, or any pending application for a parenting order, of which the person is aware.^[96] On the other hand, the Victorian family violence legislation places an obligation on a court that decides to make a family violence protection order—where one of the parties is the parent of a child—to enquire whether a parenting order or a child protection order is in force.^[97]

30.84 The application forms for protection orders in most states and territories ask whether a child is the subject of a current order under the Family Law Act, or whether there are pending proceedings for such an order.^[98] Queensland’s Protection Order Application asks whether a court has made any other orders involving the parties, or if there are other proceedings that are yet to be decided in another court. Individual check boxes are then set out for current and non-current: children’s court orders; Queensland domestic violence orders; interstate or New Zealand domestic violence orders; family court orders and any other orders. The form also asks the parties to attach copies of the orders.^[99]

30.85 However, some forms—for example, in the ACT—ask about pending or finalised proceedings without specifically asking whether there are existing family court orders. The application form for a protection order in the Magistrates Court of South Australia does not seek information about family court orders or pending proceedings for such orders, although this information is sought on the Affidavit to Support an Application for a Domestic Violence Restraining Order. In addition, few application forms for variation of protection orders request information about relevant family law orders.^[100]

Consultation Paper

30.86 In the Consultation Paper, the Commissions proposed that state and territory family violence legislation should provide mechanisms for courts exercising jurisdiction under such legislation to be informed about existing parenting orders or pending proceedings for such orders. The Commissions suggested that this might be achieved by requiring parties to proceedings for a protection order to inform the court about any such parenting orders or proceedings; requiring courts making protection orders to inquire as to any such parenting orders or proceedings; or both of the above.^[101]

30.87 The Commissions also proposed that application forms for protection orders in all states and territories, including applications for variation of protection orders, should clearly seek information about existing parenting orders or pending proceedings for such orders.^[102]

Submissions and consultations

30.88 Submissions and consultations indicated that it was important to ensure that information about parenting orders should flow to state and territory courts and suggested a number of ways that this could be achieved. National Legal Aid, and a number of other stakeholders,^[103] supported the proposal to require parties to proceedings for a protection order to inform the court about any parenting orders or proceedings and to require courts making protection orders to inquire as to any parenting orders or proceedings.^[104] The submission noted, however, that it was not sufficient to rely on the parties to inform the courts about existing parenting orders and suggested that protocols should be put in place to allow state and territory courts to access the family courts’ database containing this information.^[105] Other parties suggested this information should be captured on a central national register.^[106]

30.89 In their submission, the Chief Justice of the Family Court and the Chief Federal Magistrate noted that the Commonwealth Courts Portal (CCP)—an initiative of the Family Court of Australia, the Federal Court of Australia and the Federal Magistrates Court of Australia—provides secure web-based access to information about cases before these courts. The submission stated that the Family Court’s Policy Advisory Committee has considered extending access to the CCP to relevant organisations including possibly state and territory police, state and territory children’s courts, child protection agencies and the Child Support Agency and expressed support for a limited trial.^[107] This issue is discussed further, below.

30.90 One stakeholder submitted that requiring vulnerable parties, for example those from non-English speaking backgrounds, those with intellectual disabilities, or low levels of literacy to inform the court about parenting orders—particularly where they were self-represented—would be too difficult. This stakeholder was of the view that the obligation should lie with the court.^[108] A number of other stakeholders agreed.^[109]

30.91 The Magistrates’ Court and the Children’s Court of Victoria also noted that most parties to proceedings under family violence legislation are unrepresented and may only get limited legal advice, if any, during the proceedings. The submission expressed the view that, in these circumstances, it would not be appropriate to impose a legal obligation on the parties to inform the court about parenting orders or proceedings. The Courts submitted that the best approach would be to ensure that the relevant questions are asked on application forms and to impose an obligation on courts to inquire as to any parenting orders or proceedings.

30.92 The Magistrates’ Court and the Children’s Court of Victoria noted, in addition, that a national register, including family law orders affecting children as well as family violence protection orders would assist. Pending the establishment of such a register, the Courts suggested that it would be useful to establish protocols between the federal family courts and the state and territory courts to ensure that copies of current family court orders are provided to state and territory courts.^[110]

30.93 The submission from the NSW Local Court highlighted s 42(1) of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which provides:

(1) A person who applies for, or for a variation of, a final apprehended violence order or interim court order must inform the court of:

(a) any relevant parenting order of which the person is aware, or

(b) any pending application for a relevant parenting order of which the person is aware.

The court is required to inform the applicant of the obligation of the applicant under this subsection.

30.94 The provision imposes an obligation on the parties to inform the court of any parenting order or pending application, but also requires the court to bring this obligation to the parties’ attention. The submission also noted that the application form for a protection order in NSW has a section for the applicant to indicate whether there are parenting orders in place.^[111]

30.95 There was general support for ensuring that application forms for protection orders in all states and territories clearly seek information about existing parenting orders, or pending proceedings for such orders.^[112] One submission noted that the Queensland Protection Order Application form, discussed above, would provide a suitable model.^[113]

Commissions’ views

30.96 It is clearly important that state and territory courts making protection orders are aware of existing parenting orders. This information is central to ensuring that proceedings for protection orders are conducted on an informed basis. The most common approach in state and territory family violence legislation is to impose a legal obligation on parties to inform the court about existing parenting orders. However, stakeholders have indicated that it is not helpful to impose an obligation of this kind on parties—where failure to provide the information is likely to involve a sanction of some kind—given that many will be unrepresented, and some will be more vulnerable, such as those from culturally and linguistically diverse backgrounds and persons with a disability.

30.97 Accordingly, the Commissions are not recommending placing a legal obligation on the parties to provide information about parenting orders. However, application forms for protection orders should ask—clearly and specifically—about the existence of parenting orders or pending proceedings for such orders. In the Commissions’ view, including clear, specific questions on application forms is a more effective method of eliciting information from parties, than imposing a legal obligation on them. In addition, the Commissions recommend that states and territories should amend their family violence legislation to place an obligation on courts to ask for the required information.

30.98 The Commissions also recommend that parenting orders should be included on the national register and that state and territory courts exercising jurisdiction under family violence and child protection legislation should have access to the register.^[114] In addition, the Commissions recommend that state and territory courts should be given access to the Commonwealth Courts Portal. This will ensure that those courts have timely access to accurate and up-to-date information about cases that are before the federal family courts, the outcomes of those cases and orders made by the courts.^[115]

Non-publication provision

30.99 Section 121 of the Family Law Act makes it an offence to publish any account of any proceedings under the Act that identifies a party to the proceedings; a person who is related to, or associated with a party to the proceedings; or a witness in the proceedings.^[116] The provision sets broad parameters for when information will be taken as identifying a person. These include any of the following particulars, where they are sufficient to identify a person to a member of the public, or a section of the public:

• the person’s name, title, pseudonym or alias;

• the address of any premises at which the person resides or works, or the locality in which premises are situated;

• the person’s physical description or style of dress;

• any employment or occupation in which the person engages;

• the person’s relationship to identified relatives, friends or businesses;

• the person’s recreational interests or political, philosophical or religious beliefs; and

• any real or personal property in which the person has an interest or with which the person is otherwise associated.

30.100 There are a number of exceptions to the publication offence in s 121—most relevantly, for disclosures to persons concerned in proceedings in ‘any court’ for use in connection with those proceedings.^[117] Other exceptions include, for example, disclosures made to legal professional disciplinary boards; disclosures made to bodies providing, or considering whether to provide, legal aid; notices or reports published pursuant to a court direction; and publications intended primarily for use by members of the legal profession. Accounts of proceedings may also be published with court approval.

30.101 The impact of the publication offence in s 121 on the communication of information for the purpose of protection order proceedings under state and territory family violence legislation will depend on the interpretation of the terms an ‘account of proceedings’ and dissemination ‘to the public or to a section of the public’. In Hinchcliffe v Commissioner of Police of the Australian Federal Police, Kenny J of the Federal Court gave a narrow interpretation to both of these terms.^[118] Kenny J commented that an ‘account of proceedings’ requires a narrative, description, retelling or recitation of something about, or that has happened in, the proceedings. This is not made out merely because some allegations made in the proceedings are reiterated outside the court.

30.102 Kenny J noted with approval the ruling in Re Edelsten; Ex Parte Donnelly,^[119] that dissemination ‘to the public or to a section of the public’ should be taken as a reference to a ‘widespread communication with the aim of reaching a wide audience’.^[120] This does not encompass communications to close personal associates or members of a group with an interest that is substantially greater than, or different from, the interest of other members of the public.

30.103 In the Consultation Paper, the Commissions asked whether the prohibition on publication set out in s 121 of the Family Law Act unduly restricted communication about family law proceedings to those involved in protection order proceedings, including the police.^[121]

Submissions and consultations

30.104 In its submission, Legal Aid NSW noted that s 121 was designed to prevent the publication of the facts of a case in the media, rather than the use of Family Court proceedings in the state and territory courts. The submission noted, however, that where a party seeks to adduce evidence contained in family or expert reports in child abuse or assault cases brought in the state and territory courts, requests for these reports are dealt with on their merits by the family courts, the interests of children being the primary consideration. The submission noted that such reports are provided for use in other proceedings about 50% of the time.^[122]

30.105 The Chief Justice of the Family Court and the Chief Federal Magistrate stated in their submission that they were not aware of any examples of the prohibition on publication in s 121 of the Family Law Act unduly restricting communication about family law proceedings to persons involved in protection order proceedings.^[123] The Queensland Law Society suggested that s 121 could be clarified to make clear that sharing information with the police or with child protection agencies did not amount to ‘publication.’^[124]

30.106 The Law Council of Australia stated that, in practice, s 121 does not unduly restrict the flow of family court information to the state and territory courts. A number of other stakeholders agreed.^[125] The Council noted that the exception in s 121(9)(a)—which allows the communication, to persons concerned in proceedings in any court, of any pleading, transcript of evidence or other document for use in connection with those proceedings—allows the use of this information in protection order proceedings.^[126]

Commissions’ views

30.107 The Commissions note that s 121 of the Family Law Act does not appear to be unduly restricting communication about family law proceedings to state and territory courts hearing protection order matters. Section 121 of the Family Law Act is primarily aimed at preventing widespread publication of family court proceedings that include identifying information in the media. In the Commissions’ view this general prohibition is appropriate.

30.108 There are a number of ways in which information can be shared between the federal family courts, state and territory courts, the police and child protection agencies. Section 121 allows communication of information to police involved in proceedings in any court. Section 67Z of the Family Law Act requires the Registry Manager of the Family Court to ‘as soon as practicable, notify a prescribed child welfare authority’ where a Notice of Child Abuse or Family Violence (Form 4) is filed. In addition, those with a ‘proper interest’ may have access to federal family court files with the permission of the court.^[127]

30.109 Finally, Justice Kenny’s view that dissemination ‘to the public or to a section of the public’ should be taken as a reference to a ‘widespread communication with the aim of reaching a wide audience’,^[128] means that s 121 will not apply to disclosures between courts and agencies with a legitimate interest in the matter. It is on this basis that state and territory courts, for example, might be given access to the Commonwealth Courts Portal.

30.110 In the Commissions’ view, the exception to allow disclosure to persons concerned in any court proceedings for use in connection with those proceedings sufficiently enables the sharing of information for the purpose of protection order proceedings under state and territory family violence legislation. The Commissions are not, therefore, recommending that s 121 be amended.

Access to federal family court records

30.111 Information included in federal family court records may also be relevant to proceedings under state and territory family violence laws. This information is wider than the details of current or prior parenting orders and may include, for example, the reasons for making these orders—such as interviews with or assessments of parents or children, including family consultant assessments and clinicians’ reports—and injunctions granted under the Family Law Act.

30.112 The Family Law Rules 2004 (Cth) specify a limited range of people who may search the court record relating to a case, or inspect or copy a document forming part of the record as follows:

(a) the Attorney‑General;

(b) a party, a lawyer for a party, or an independent children’s lawyer, in a case;

(c) with the permission of the court, a person with a proper interest:

(i) in the case; or

(ii) in information obtainable from the court record in the case;

(d) with the permission of the court, a person researching the court record relating to the case.^[129]

30.113 In considering whether to give permission to a person seeking to obtain access to a part of the court record other than court documents, the court must consider:

(a) the purpose for which access is sought;

(b) whether the access sought is reasonable for that purpose;

(c) the need for security of court personnel, parties, children and witnesses;

(d) any limits or conditions that should be imposed on access to, or use of, the record.^[130]

30.114 The only situation in which the Family Law Act expressly provides for details of injunctions or orders to be provided to other courts is where a federal family court has made an order or granted an injunction that is inconsistent with an existing protection order.^[131]

30.115 The Family Law Council made a submission to the ALRC’s 2008 inquiry into Australian privacy laws,^[132] commenting on the challenge of information sharing in the context of family violence. It noted that:

In many cases information held by one part of the system is not available to another part because of privacy considerations. Decisions are therefore made in the absence of a complete picture of the family circumstances. This lack of transparency often leads to misguided decisions being taken or problems being ignored. This is particularly so when decisions have to be made on an urgent basis and there is no time for the leisurely process of subpoenas or information orders to be sought.^[133]

30.116 The Council advised that it was considering whether police officers should have access to the family courts’ databases to ensure that they had relevant information available when dealing with situations of family violence. One of the examples that the Council provided was where a court has ordered that a supervisor be present when a parent spends time with a child:

Without access to information on the child related orders, police might attend a scene and remove the person responsible for supervising a parent spending time with a child without also removing the child … At the moment, police must rely on seeing the physical orders when they attend the scene.^[134]

30.117 It was noted in ALRC 108 that, pursuant to r 24.13 of the Family Law Rules, police officers are already able to obtain access to information held by the Family Court where the officer can demonstrate a ‘proper interest’ in the court record.^[135] Accordingly, the ALRC did not recommend legislative change in this regard.

Submissions and consultations

30.118 The Chief Justice of the Family Court of Australia and the Chief Federal Magistrate stated in their submission that there were no known examples of individuals or agencies seeking access to records for the purpose of protection order proceedings not being provided with the requested documentation in a timely fashion. The submission stated that the existing provisions provided sufficient flexibility to enable information to be exchanged, subject to appropriate safeguards.^[136]

30.119 In addition, the submission noted that access to the Commonwealth Courts Portal (CCP) is currently available to registered litigants and legal practitioners and that, as noted above, the Family Court’s Policy Advisory Committee is actively considering extending access to the CCP to relevant agencies and organisations including state and territory police, state and territory children’s courts, child protection agencies and the Child Support Agency.^[137]

30.120 The Queensland Law Society expressed the view that the records of proceedings under the Family Law Act were generally accessible in a timely fashion to those involved in family violence proceedings in Queensland, noting that:

Typically, magistrates do not want to be burdened with very long affidavits filed in family law proceedings, a great proportion of which are irrelevant to an application for a protection order. Magistrates certainly do want to be aware of existing current orders, particularly those impacting on children, provided that they are relevant. In the matters which are contested, parties ensure that these matters are property brought to the attention of magistrates.^[138]

30.121 The Magistrates’ Court and Children’s Court of Victoria stated, however, that:

In our experience, the process for obtaining family law orders from the federal family law courts in a timely fashion is unreliable. We believe that legislation requiring federal family courts to provide copies of orders to state courts would assist in producing more reliable processes. We also support the development of a national database for family law, family violence and child protection orders relating to children that can be accessed by police as well as courts.^[139]

30.122 A number of other stakeholders also indicated that there were problems gaining access to federal family court records^[140] and suggested that there needed to be improvements in the legislation or procedures that regulate the provision of access.^[141]

Commissions’ views

30.123 In the Commissions’ view, there is adequate flexibility in the provisions in the Family Law Rules to allow those with a ‘proper interest’ to access information for the purpose of protection order proceedings under state and territory family violence legislation. The Commissions do not, therefore, recommend that the Rules be amended. However, there appear to be some issues with the provision of access to family court records in practice. This could be resolved in a number of ways, for example, by developing information sharing protocols between the relevant courts, government agencies and private sector organisations. This issue is discussed further, below.

30.124 The Commissions note, however, that state and territory courts are most interested in having reliable and timely access to information about existing family court orders and proceedings for such orders. This need could effectively be addressed by providing state and territory courts with access to the CCP, which includes information about outcomes of cases and orders made. The Commissions note that the Family Court’s Policy Advisory Committee is considering extending access to the CCP to relevant agencies and organisations. The Commissions’ view is that state and territory courts dealing with family violence and child protection matters—and others with a ‘proper interest’ in such matters, including police and child protection agencies—should have access to the CCP to ensure that they can reliably confirm in a timely way whether there are existing related orders in place or pending proceedings for such orders.

30.125 The Commissions are also of the view that, in the future, this information should also be included on the proposed national register. This issue is discussed further below.^[142]