69.95 Children and young people are often involved in counselling or family dispute resolution services undertaken as part of a family law matter. Counselling and family dispute resolution services in association with family law disputes are now offered by private sector services (including not-for-profit services) which, unless they fall within an exemption, are subject to the NPPs. The Family Law Act 1975 (Cth) includes provisions governing the confidentiality of such services. While an adult can give permission to have his or her information disclosed for any purpose, information provided by an individual under the age of 18 can be disclosed only with the agreement of each of the persons with parental responsibility for the child, or the approval of the court.
Submissions and consultations
69.96 Generally, submissions and consultations did not raise any issues of concern about the operation of the Family Law Act or the privacy policies in operation in the Family Court of Australia, the Family Court of Western Australia or the Federal Magistrates Court.
69.97 The exception was the NCYLC, which submitted that the operation of ss 10D(3) and 10H(3) of the Family Law Act—which provide that information about a child may be disclosed if each of the persons with parental responsibility for the child agrees—operate contrary to the rights-based approach in the Privacy Act by excluding the involvement of the child in the decision-making process. The NCYLC indicated it had broader concerns about the lack of provision for the rights of children to be involved in family law dispute resolution processes generally.
69.98 The ALRC agrees that ss 10D(3) and 10H(3) of the Family Law Act are not consistent with the recommended approach under the Privacy Act and the general principles of involvement of children and young people in decision-making processes as set out in CROC. These provisions should be reviewed, giving consideration to an improved process for involving a child or young person in the decision.
69.99 From a privacy perspective, and consistent with the ALRC’s recommendations in Chapter 68, it would be appropriate to amend the provisions to require the consent of a child or young person with decision-making capacity to the disclosure of his or her personal information. Due to the contexts in which ss 10D(3) and 10H(3) may operate, it may be appropriate to apply the ALRC’s recommended age of presumption of capacity and require consent to disclosure from a young person aged 15 or over.
69.100 The ALRC is concerned, however, that there may be issues additional to privacy concerns that affect the operation of ss 10D(3) and 10H(3). The focus of this Inquiry is on privacy. The ALRC has not had an opportunity to identify and give full consideration to those additional issues, and therefore no recommendation is made for amendment to the Family Law Act. The ALRC suggests that appropriate consideration should be given to an amendment by the Attorney-General’s Department, which has responsibility for the Family Law Act. Alternatively, it may be appropriate that the Family Law Council give further consideration to the issue.
69.101 The broader issue of child-inclusive practices in family dispute resolution is well outside the scope of the this Inquiry. The ALRC notes, however, that there are models for child-inclusive practices in family dispute resolution, and that these are steadily gaining favour in Australia.
 Until 1 July 2006, confidential counselling and family dispute resolution services were also provided by specialised staff of the Family Court of Australia who were subject to the IPPs. These staff are now called ‘family consultants’ and no longer provide confidential services.
 Family Law Act 1975 (Cth) ss 10D, 10H. These provisions became operational on 1 July 2006.
 Ibid ss 10D(3), 10H(3).
 National Children’s and Youth Law Centre, Submission PR 166, 1 February 2007.
 National Children’s and Youth Law Centre, Submission PR 491, 19 December 2007.
 The Family Law Council is a statutory authority established under the Family Law Act 1975 (Cth). The Council’s functions are to advise and make recommendations to the Attorney-General concerning family law.
 L Moloney, ‘Child-Sensitive Practices in High-Conflict Parenting Disputes: A 30-Year Road to Serious Reform’ (2006) 12 Journal of Family Studies 37; L Moloney and J McIntosh, ‘Child-Responsive Practices in Australian Family Law: Past Problems and Future Directions’ (2004) 10 Journal of Family Studies 71.