Removing impediments to information sharing

Information sharing has been identified as an ongoing challenge in ensuring the safety of victims of family violence in proceedings in federal family courts and state and territory courts. Time for Action recommended that information-sharing systems and protocols should be developed and supported by all organisations in response to sexual assault and family violence. It also considered that such protocols should give primacy to the safety of women and their children.^[10]

Federal family court proceedings

Access to records

Information included in federal family court records may be relevant to proceedings under state and territory family violence laws. This information could include, for example, details of current or prior parenting orders, reasons for making these orders, as well as injunctions granted under the Family Law Act. The Family Law Rules 2004 (Cth) specify a range of people who may search the court record relating to a case, or—with the permission of the court—a document forming part of the record.

The Family Law Council made a submission to the ALRC’s 2008 inquiry into Australian privacy laws (ALRC 108),^[11] 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.^[12]

The Commissions are interested in stakeholder feedback on the accessibility and timeliness—in practice—of the record of any relevant family court proceedings to persons who have an interest in protection order proceedings under state and territory family violence legislation, including police who may be involved in enforcing protection orders.

In the Commissions’ preliminary view, there is adequate flexibility in the provisions in the Family Law Rules to allow police officers and others to access information for the purpose of protection order proceedings under state and territory family violence legislation. To the extent that persons with a justifiable interest are not able to obtain access to family court records, this may indicate a need for formalised information-sharing practices—for example, through information-sharing protocols.

However, information-sharing obligations could also be imposed at the legislative level. The Commissions are interested in stakeholder views about the need for, or desirability of, a requirement in the Family Law Act, or the rules under that Act, for a federal family court to provide details of injunctions or orders to another court—for example, a state or territory court hearing proceedings under family violence legislation involving one or more of the parties to the family law proceedings.

Publication

Section 121 of the Family Law Act makes it an offence to publish an 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. 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.^[13]

The Commissions are interested in stakeholder views about whether s 121 of the Family Law Act unduly restricts the sharing of information for the purpose of protection order proceedings under state and territory family violence legislation, including with police who enforce such orders.

The Commissions’ preliminary view is that 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.

Family dispute resolution information

Pursuant to s 60I of the Family Law Act, before applying for an order under pt VII of the Act (child-related proceedings), a person must first make a genuine effort to resolve the dispute by family dispute resolution. Subject to certain exceptions—including where the court is satisfied that there are reasonable grounds to believe that there has been, or there is a risk of, family violence by one of the parties to the proceedings—a court must not hear an application for such an order unless the applicant has filed a certificate from an FDR practitioner (a s 60I certificate).

Stakeholders have noted the benefit of s 60I certificates in signalling that a proceeding under pt VII of the Family Law Act involves family violence concerns.^[14] The limited amount of information currently included on s 60I certificates, however, constrains their potential for passing on information about family violence risks to federal family courts.

The Commissions consider that the certificates should include additional information about why family dispute resolution was inappropriate or unsuccessful—for example, because there has been, or there is a future risk of, family violence by one of the parties to the proceedings. In addition to increasing the usefulness of s 60I certificates in proceedings in courts exercising family law jurisdiction, such a reform could also lead to a role for s 60I certificates in protection order proceedings under state and territory family violence legislation.

The Commissions note the concern that requiring additional information will change the role of FDR practitioners. Some of these concerns—such as the probability that FDR practitioners will have to testify—depend upon whether the information in s 60I certificates is treated as evidence of the allegation, and the nature of other information gained during FDR processes available to courts exercising family law jurisdiction. The Commissions are interested in hearing further from stakeholders about whether it is desirable to limit the use of information provided in s 60I certificates, for example, by providing that the information can only be used for the purposes of screening and risk assessment by courts; or whether such certificates should be used more widely and, if so, in what ways.

Communications to family counsellors and FDR practitioners

Sections 10D and 10H of the Family Law Act impose information-handling obligations on family counsellors and FDR practitioners respectively. These persons must maintain the confidentiality of all communications made to them except in limited situations, including disclosure:

• with the consent of the person who made the disclosure or, if the person is under the age of 18, with the consent of each of the child’s parents or a court; or
• 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.

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 child abuse.

Previous reviews have suggested the need to relax the confidentiality provisions in ss 10D and 10H of the Family Law Act.The Chisholm Review recommended that the Australian Government should consider amending the confidentiality provisions in the Family Law Act to make information relevant to assessing the risks from family violence more readily available to federal family courts.^[15]

On 25 February 2010, the Sydney Morning Herald reported that the Chief Justice of the Family Court had raised concerns with the Attorney-General about the non-disclosure of FDR information to the Family Court. It was reported that Chief Justice Bryant argued that this information should be made available to family law judges making parenting orders where an FDR practitioner believes there is a risk to a person’s safety—for example, due to family violence, mental health or drug and alcohol issues.^[16]

The Commissions seek further information about whether, in practice, ss 10D and 10H of the Family Law Act operate to inappropriately restrict the release of information relating to the risks of family violence to courts—including state and territory courts exercising jurisdiction under family violence legislation.

The Commissions’ preliminary view is that the operation of the ss 10D and 10H confidentiality provisions should be relaxed. In particular, ss 10D(4)(b) and 10H(4)(b) should 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.

This proposal would expand the present exception in two ways. The first is removal of the ‘imminence’ requirement. In the Commissions’ preliminary view, there are compelling policy reasons to permit the disclosure of personal information in such circumstances. Family violence often manifests as controlling behaviour over a number of years, the threat from which may be very difficult to characterise as ‘imminent’ even where it is ‘serious’.

Secondly, the proposed changes would permit a family counsellor or FDR practitioner 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. Safety has been described as ‘the central concern of domestic violence intervention’.^[17]

The Commissions are also interested in stakeholder views on the merits of permitting a family counsellor or FDR practitioner to disclose communications when he or she reasonably believes that disclosure is necessary to report conduct that he or she reasonably believes constitutes grounds for issuing a protection order under state and territory family violence legislation. The clearest application of any such reform is in jurisdictions where police officers apply directly for protection orders. A family counsellor or FDR practitioner who has been made aware of conduct that would constitute grounds for issuing a protection order would have the option of reporting this information to the police.

The Commissions are also interested in stakeholder views on whether these proposals are sufficiently broad to encompass the range of information gained by family counsellors and FDR practitioners that should be available to courts, bearing in mind the competing interests in the confidentiality of counselling and dispute resolution processes. For example, should the exception be extended to preventing or lessening a serious threat to a child’s welfare?

Admissibility of communications to family counsellors and FDR practitioners

Even where a family counsellor or FDR practitioner is permitted to disclose a communication, it may not be admissible as evidence in court proceedings. Pursuant to ss 10E and 10J of the Family Law Act, evidence of anything said, or any admission made, by or in the company of a family counsellor or FDR practitioner is inadmissible ‘in any court (whether or not exercising federal jurisdiction)’ or ‘in any proceedings before a person authorised to hear evidence (whether the person is authorised by a law of the Commonwealth, a State or a Territory, or by the consent of the parties)’. There are exceptions where:

• an admission by an adult indicates that a child under 18 has been abused or is at risk of abuse; or
• a disclosure by a child under 18 that indicates that the child has been abused or is at risk of abuse.

In its 2009 report, the Family Law Council recommended amending s 10E of the Act to include an exception allowing disclosure where an adult or child discloses that a child has been exposed to family violence’.^[18]

The Commissions support the Family Law Council’s recommendation that s 10E of the Family Law Act be amended to include an exception allowing communications to a family counsellor or FDR practitioner to be admitted in evidence when an adult or child discloses that a child has been exposed to family violence. This appears in line with the existing exceptions in that provision protecting the interests of children. This amendment should also apply to s 10J of the Act, which applies to communications made to FDR practitioners.

The Commissions are interested, however, in stakeholder views as to whether ss 10E and 10J should be amended to enable the admission of any other evidence relating to family violence and, if so, what limits should be placed on the admissibility of such evidence.

Another issue is whether the general prohibition on admission of communications to family counsellors and FDR practitioners as evidence, in ss 10E and 10J, should be amended to expressly apply to state and territory courts when they are not exercising family law jurisdiction. In Anglicare (WA) v Department of Family & Children’s Services, the Supreme Court of Western Australia held that the prohibition on admissibility ‘in any court (whether or not exercising federal jurisdiction)’ set out in s 19N of the Family Law Act—the predecessor to the current s 10E—was limited by the definition of ‘court’ in s 4 of the Family Law Act—being the court exercising jurisdiction in the Family Law Act proceedings. Accordingly, the inadmissibility provisions did not extend to proceedings in the Children’s Court of Western Australia.^[19]

Similar reasoning was used by the majority of the Supreme Court of South Australia in R v Liddy (No 2) to permit the admission of Family Law Act counselling records in criminal proceedings. However, in a dissenting opinion, Wicks J expressed the view that ‘any court (whether exercising federal jurisdiction or not)’ should be interpreted more broadly.

There is no clear policy rationale for communications to family counsellors and FDR practitioners being inadmissible in Family Law Act proceedings but admissible in protection order proceedings under state and territory family violence legislation. Such a policy also appears to be out of step with the inadmissibility of such communications in all federal, state and territory tribunal, mediation, and arbitration proceedings.

However, the Commissions are concerned about the potential for such a reform to be detrimental to victims of family violence who are involved in family law proceedings and protection order proceedings under family violence legislation in state and territory courts. The Commissions seek feedback from stakeholders on the merits of extending the inadmissibility of communications made to family counsellors and FDR practitioners to proceedings in other courts—for example, courts hearing protection order proceedings under state and territory family violence legislation.

State and territory family violence proceeding information

Non-publication provisions in family violence legislation

The family violence legislation in every state and territory imposes prohibitions on the publication of certain information about persons involved in, or associated with, protection order proceedings. However, jurisdictions differ as to whether non-publication is the default position or is triggered by a court order, and the exceptions and defences available to permit publication. Non-publication provisions in state and territory family violence legislation also differ as regards their duration—while some last indefinitely, others only apply until such time as a court has disposed of the proceedings.

Limiting the public disclosure of information relating to protection order proceedings under family violence legislation is important to protect the privacy interests of persons—in particular, children—involved with proceedings. Arguably, the need for secrecy in the context of protection order proceedings may be greater than in the context of proceedings under the Family Law Act. By definition, protection order proceedings will require parties to disclose highly sensitive information about physical and psychological harm which has been inflicted on them, and—where relevant—their sexual relationship. These issues may be absent from, or peripheral to, many proceedings captured by s 121 of the Family Law Act.

However, the Commissions are concerned about the possibility that non-publication provisions in state and territory family violence proceedings unduly restrict communication about protection order proceedings—in particular, with persons associated with family law proceedings in federal family courts. The Commissions are interested in stakeholder views on whether this issue arises in practice.

In the event that there are such problems, the Commissions have identified several legislative options which may facilitate greater sharing of identifying information about adults involved in or associated with proceedings for protection orders, namely:

•  

  • requiring the prohibition on disclosure to be activated by a court order where the identifying information relates to an adult, rather than by default;

  • imposing a requirement that the disclosure of identifying information must be reasonably likely to expose a person to risk of harm as a precondition for a court to issue an order prohibiting publication—as applies, for example, in proceedings under the Northern Territory family violence legislation that are not related to children; and/or

  • including an exception to prohibitions on publication for the disclosure of pleadings, transcripts of evidence or other documents to a police officer or to persons concerned in any court proceedings for use in connection with those proceedings—as applies, for example, under the Queensland family violence legislation.

The Commissions are interested in stakeholder views on the merits or otherwise of any such reforms. The Commissions do not suggest any options for increasing the publication of identifying information about children involved in protection order proceedings, since this would not be in the best interests of the child.

Ensuring that laws allow disclosure of information to, for example, federal family courts may not be sufficient to ensure that information is actually shared in practice. This raises the question of whether state and territory family violence legislation should require courts to provide information about proceedings in certain circumstances—for example, where the court is aware of proceedings underway in a federal family court involving one or more of the parties to the protection order proceedings.

In the Commissions’ preliminary view, a practical way, in the short term, in which to impose information-sharing requirements is through information-sharing protocols, rather than direct legislative obligations. Such protocols allow the development of a more nuanced framework that can accommodate situations in which disclosing information would be inappropriate or should be subject to additional conditions. However, the Commissions are interested in stakeholder views on whether there are some circumstances in which it is necessary or desirable for state and territory family violence legislation to require courts to disclose information which may be relevant to proceedings in federal family courts.

Agency information

Information held by federal, state and territory government agencies may also be relevant to protection order proceedings under state and territory family violence laws and Family Law Act proceedings. Legal obstacles to sharing information may stem from privacy and secrecy laws. The extent to which these laws impede information sharing will also depend on the availability of provisions in other laws that authorise or require information sharing in certain contexts. Some state and territory family violence legislation includes such information-sharing provisions.

Time for Action identified privacy laws as one of the ongoing obstacles to an integrated and effective response to family violence. Many stakeholders consulted in this Inquiry have agreed that they encounter difficulties sharing information because of privacy and secrecy laws. The Commissions seek further stakeholder views on whether privacy and secrecy laws are impeding federal, state and territory agencies from disclosing information which may be relevant to:

• protection order proceedings under state and territory family violence legislation; and
• Family Law Act proceedings in federal family courts, to the extent that these give rise to family violence concerns.

The Commissions are particularly interested in whether additional legal or practical issues are encountered where information sharing takes place across federal and state and territory boundaries—for example, where a state or territory government agency provides information to a federal family court.

In the Commissions’ preliminary view, the public interest in protecting victims of family violence from further abuse should take precedence over the public interest in respecting an individual’s privacy. In particular, federal, state and territory agencies should be able to disclose personal information, on a confidential basis, to other agencies and court officers where this information is necessary for the purpose of initiating or conducting protection order proceedings. If limitations on use and disclosure under privacy laws are preventing this cooperation, then there is a strong argument for relaxing the limitations.

In a 2008 report, the ALRC recommended substantial reforms in the privacy area including a uniform set of privacy principles to apply across private sector organisations and federal, state and territory government agencies.^[20] Implementation of these recommendations would address many of the barriers currently raised by privacy laws. In particular the ALRC recommended that the use and disclosure of personal information should be possible where someone reasonably believes that such use or disclosure is necessary to lessen or prevent a serious threat to an individual’s life, health or safety. As noted above, the Australian Government substantially accepted this recommendation—with the caveat that the agency should first obtain the consent of the person to whom the information relates, where reasonable and practicable.

The Commissions are concerned, however, that such a reform may not be sufficient to enable information sharing in all circumstances where such sharing would be warranted. In particular, the Commissions consider there is merit in state and territory family violence legislation authorising certain information sharing. Such provisions would mean that information sharing would be ‘required or authorised by law’, and, therefore, an exception under privacy laws. Such provisions could also authorise disclosure for the purpose of many secrecy laws. In the Commissions’ preliminary view, information-sharing provisions should be included in all state and territory family violence legislation.

The Commissions do not intend to specify the manner in which such information-sharing provisions should be drafted. The Commissions consider that each state and territory should have the discretion to draft such a provision as an open-ended authorisation to disclose information for the purpose of achieving a specified purpose—the Tasmanian model—or a codified information-sharing regime, under which disclosure may only be made of certain information and to specified persons—the Western Australian model. However, several elements of the information-sharing provision warrant attention.

The purposes for which information can be disclosed: At this stage, the Commissions endorse the purpose for information sharing set out in the Western Australian family violence legislation—that is, where the agency reasonably believes that disclosure is necessary to ensure the safety of a victim or the wellbeing of an affected child. In effect, this modifies the ‘life, health and safety’ exception in privacy laws, discussed above, by removing the requirement that a specific threat be ‘serious’. The Commissions consider this change to be justifiable given the nature and dynamics of family violence. As discussed in Chapter 4, a central feature of family violence is that the person using it exercises control and power over the victim by inducing fear. In this way, violence can involve a continuum of controlling behaviour occurring over a number of years, rather than single serious incidents that are the focus of the relevant privacy exception.

To whom information may be disclosed: This may not be an issue where information-sharing provisions are drafted in accordance with the Tasmanian model—that is, where the only requirement for disclosure is that it satisfies the requisite purpose. However, provisions modelled on, for example, the Western Australian family violence legislation, may unduly constrain the persons with whom information can be shared. In the Commissions’ preliminary view, disclosure should be permitted to, at least, relevant government officers in other jurisdictions—for example, Commissioners of Police—and officers of federal, state and territory courts.