Information flow to the family law system

30.10 As discussed in Chapter 15, the Family Law Act 1975 (Cth) sets out detailed considerations to which a family court must have regard in deciding whether to make a particular parenting order. The ‘paramount consideration’ in this regard is ‘the best interests of the child’.[5] Pursuant to s 60CC, the primary considerations for determining what is in a child’s best interests are:

(a) the benefit to the child of having a meaningful relationship with both of the child’s parents; and

(b) the need to protect the child from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence.[6]

30.11 Section 60CC also sets out a lengthy list of ‘additional considerations’. Two of the additional considerations have particular relevance in the context of allegations of family violence:

  • any family violence involving the child or a member of the child’s family;[7] and

  • any family violence order that applies to the child or a member of the child’s family, provided the order is a final order or its making was contested.[8]

30.12 There are a number of ways that information about these matters may be brought to the attention of the court including where information is supplied by the parties, or by other professionals working with the parties. Information may also be shared between different courts or between agencies and organisations and the courts. All of these mechanisms are considered further, below.

Notification of family violence and child protection matters

30.13 One of the ways that information about these issues is channelled into the family law system is by way of application forms completed by the parties to a particular matter. Section 60CF(1) of the Family Law Act provides that if a party to parenting proceedings is aware that a family violence protection order applies to a child, or a member of the child’s family, that party must inform the court of that order. Further, a person who is not a party to the proceedings but is aware of a protection order that applies to a child or a member of the child’s family, may inform the court of the order.[9]

30.14 The Family Law Rules 2004 (Cth) specify that a party must file a copy of any family violence protection order when a case starts or as soon as practicable after the order is made.[10] This accommodates situations where parenting proceedings before the Family Court and protection order proceedings before a state or territory court are running concurrently, as well as where protection order proceedings have been finalised before Family Court proceedings begin. If a copy of the protection order is not available, the party must file a written notice containing an undertaking to file the order within a specified time, as well as details of the order.[11]

30.15 Section 67Z of the Family Law Act requires a party to a parenting proceeding who alleges that a child has been abused, or is at risk of being abused, to file a Notice of Child Abuse or Family Violence (Form 4). Once the form has been filed, the Registry Manager is required to inform the relevant child protection agency. Pursuant to s 60K of the Act, once a Form 4 has been filed, the court is required to undertake certain action, including dealing with the application promptly and considering the need for any interim or procedural orders.[12]

30.16 Form 4 includes definitions of ‘abuse’ in relation to a child and ‘family violence’—as set out in s 4(1) of the Family Law Act—and provides space for a party to describe acts or omissions that are alleged to comprise the abuse or family violence.[13] However, there is no designated space on the form for a party to list any relevant family violence protection or child protection orders that have been obtained.

30.17 Part F of the initiating application for proceedings in the Family Court, Federal Magistrates Court and Family Court of Western Australia—Initiating Application (Family Law)—requests information about ‘any ongoing cases in this or any other court’ or ‘any existing orders, agreements, parenting plans or undertakings to this or any other court’ about ‘family law, child support, family violence or child welfare issues’ that involve any of the parties or children listed in the application.[14] The form is accompanied by notes to assist applicants to fill out the application, but these do not expand on what information is required in Part F.

30.18 The 2009 Family Law Council advice recommended that the federal family courts consider revising Form 4, including making it more user-friendly.[15] In addition, the Council recommended that:

The Attorney-General propose an amendment to the [Family Law Act] to place a positive obligation on the parties to inform the court about any relevant orders or arrangements in place under child welfare laws.[16]

30.19 Some commentators argue, however, that the notification of involvement in other jurisdictions should not be left to the parties—parties may fail to disclose through ignorance, neglect or malice. Instead, they suggested that there should be greater communication between the courts and child protection agencies.[17]

30.20 The Chisholm Review also considered the process for identifying family violence and child abuse in the context of family law proceedings, and expressed support for a more pro-active approach that would shift the onus for providing relevant information away from the parties:

Experience has shown that [the current] system is not working. This Report suggests that because of this, and because issues of family violence and other risk factors are so common in parenting cases brought to the courts, it would be better to have a system of risk identification and assessment that applies to all parenting cases. This approach would reflect the best available thinking about these issues, and would reinforce a lot of measures that are already being taken by the courts to identify and deal with issues of violence as early as possible.[18]

30.21 The Australian Government Attorney-General’s Department has indicated that a framework for screening and assessment for family violence across the family law system is under development.[19] This issue is discussed further in Chapter 18.

30.22 In relation to application forms, the Commissions suggested in the Consultation Paper that the Initiating Application (Family Law) should more clearly seek information about existing protection orders obtained under state and territory family violence legislation or pending proceedings for such orders.[20] The Commissions also asked what changes to the Initiating Application (Family Law) would make it clear to parties that they are being asked to disclose ongoing child protection proceedings and existing child protection orders.[21] In addition, the Commissions suggested including a question on the form seeking further information about any significant safety concerns, including in relation to any children party to the proceedings.[22]

Submissions and consultations

30.23 A number of submissions expressed support for the proposal that the Initiating Application (Family Law) should more clearly seek information about existing family violence protection orders.[23] Others expressed the view that the Initiating Application (Family Law) should also seek information in relation to child protection orders.[24]

30.24 Legal Aid NSW suggested that the application form should also include questions about the nature of the violence; involvement by state and territory child protection agencies; involvement by the police; and whether the other party was, or had been, in prison, or was on remand, in relation to family violence. Legal Aid NSW was of the view that this would assist the court’s assessment of risk.[25] The Aboriginal Family Violence Prevention and Legal Service (Victoria) was of the view that it would be helpful to require that orders be attached to the application, or to seek consent so that the court could obtain copies of the orders.[26]

30.25 However, a number of submissions raised concerns about using the existence of family violence protection orders as evidence of family violence in the family courts, noting that it may be more difficult to achieve orders by consent in the state and territory courts if those orders could be used for collateral purposes.[27] It was suggested that the Initiating Application should clearly seek information about whether the protection orders were achieved by full consent, consent without admissions or in a contested hearing.[28]

30.26 The Australian Government Attorney-General’s Department noted that Part B of the Parenting Questionnaire[29]—which is completed by the parties once a matter is going to trial—clearly asks whether there are any past or current family violence protection orders that affect the party or the party’s children.[30] The Questionnaire also asks whether the party, or any person with whom a child resides or has contact, has been involved in any child welfare proceedings.

30.27 In their submission, the Chief Justice of the Family Court of Australia and the Chief Federal Magistrate expressed the view that the inclusion of a general question in the Initiating Application (Family Law) asking whether an applicant had concerns for the safety of the applicant or the applicant’s children may assist clients, especially unrepresented clients, to provide appropriate notification of family violence or child protection issues to the court.[31] A number of other submissions agreed with this proposal.[32] Women’s Legal Services NSW noted that the same question should be included on the Response to an Initiating Application.[33]

30.28 The Australian Government Attorney-General’s Department noted, however, that s 60Z of the Family Law Act requires the parties to notify the court of any concerns that a child has been abused or is at risk of abuse. The Department’s view was that the use of the qualifier ‘significant’ in the Commissions’ proposal might deter parties from notifying the court of relevant concerns.[34]

30.29 A number of submissions—while supporting clarification of the Initiating Application—noted that other initiatives were also necessary. Some supported, in addition to clearer application forms, the establishment of a national register of orders,[35] discussed further below, and the establishment of a risk identification and assessment system as recommended by the Chisholm Review,[36] discussed in Chapter 18.

Commissions’ views

30.30 The Commissions are of the view that a range of mechanisms should be used to collect information relevant to parenting proceedings in the family courts. The Commissions support, for example, the development of a risk screening and assessment process across the family court system, discussed in Chapter 18, and the establishment of a national register, discussed below.

30.31 The forms filed by parties to parenting proceedings in family courts are, however, another important source of information. The Commissions’ view is that these forms—both the Initiating Application (Family Law) and the Response to the Initiating Application (Family Law)—should seek information from the parties in relation to past or present family violence protection or child protection orders, as well as past, pending or ongoing proceedings in relation to such orders. The Commissions note, for example, that the Parenting Questionnaire[37] seeks information about past or current family violence protection orders. More detailed information—such as that suggested by Legal Aid NSW and discussed above—should be collected as part of screening and risk assessment processes discussed in Chapter 18.

30.32 Currently, the Initiating Application (Family Law) includes one general question seeking information on existing orders and one general question seeking information on ongoing cases about family law, child support, family violence or child welfare. In comparison, some state and territory protection order application forms ask separately for details about, for example, children’s court orders, protection orders, and family court orders. The Commissions support this more detailed approach in which questions are asked, or tick boxes provided, in relation to each different order and each different kind of case.

30.33 The Commissions acknowledge that some caution must be exercised in using family violence protection orders as evidence of family violence in the family court system in some circumstances, and this issue is discussed in detail in Chapter 17. However, it is important that the family court system be aware that such orders exist so as to avoid, as far as possible, the making of inconsistent parenting orders.

30.34 In addition, the Commissions are of the view that the Initiating Application (Family Law) and Response should include a more general question which targets concerns or fears the party has for their safety, or for the safety of their child. The question should focus on safety, rather than upon the notion of ‘child abuse’ which is the current focus of the Notice of Child Abuse or Family Violence (Form 4). The Commissions agree with the Australian Government Attorney-General’s Department that the question should not set the threshold too high by use of the term ‘significant’, but should simply enquire about any safety concerns a party may have.

30.35 Form 4 does not include a designated space for parties to note existing orders. However, if a separate question seeking information about family violence protection and child protection orders is included in the Initiating Application (Family Law), another question about protection orders in Form 4 would involve unnecessary duplication. The Commissions do not, therefore, propose any change to Form 4 in this respect.

Recommendation 30–1 The Initiating Application (Family Law) and Initiating Application (Family Law) Response forms should clearly seek information about past and current family violence protection and child protection orders obtained under state and territory family violence and child protection legislation and past, pending or current proceedings for such orders.

Recommendation 30–2 The Initiating Application (Family Law) and Initiating Application (Family Law) Response forms should be amended to include a question seeking more general information, for example, ‘Do you have any fears for the safety of you or your child or children that the court should know about?’

Registration of child protection orders in family courts

30.36 One mechanism for bridging the information gap between the child protection and family law systems is s 70C of the Family Law Act, which enables the registration of ‘state child orders’—that is, orders dealing with residence and contact.[38] Section 70D provides a similar mechanism for the registration of a child protection order made in another state. A registered order has the same force and effect as if it were an order made under the Family Law Act.[39] The operation of this provision with respect to orders of the NSW Children’s Court has been described as follows:

if a New South Wales Children’s Court made an order that a child live with X, that order could be registered in the Family Court of Australia or the Federal Magistrates Court, in New South Wales or elsewhere, and then enforced as if it were an order of that court. The same applies to an order that a child should spend time with X (orders of the kind formerly referred to in the Family Law Act as ‘contact’ or ‘access’ orders).[40]

30.37 To register a relevant child protection order, a sealed copy of the order is filed in a family court registry.[41] The effect of the registration is to invoke the enforcement mechanisms of the Family Law Act. Chisholm considered the operation of the registration provision and suggested that ‘there would be no difficulty in [a child protection agency] making an application for any of these various forms of enforcement of a Children’s Court order registered in a family law court’.[42]

30.38 Section 69ZK of the Family Law Act provides that the family courts must not make an order under the Act in relation to a child who is under the care of a person under a child welfare law, unless the order is expressed to come into effect when the child ceases to be under care; or the order is made with the written consent of a child welfare officer. Chisholm suggested that, even where a child protection order is registered, s 69ZK means that the family courts could only make enforcement orders in relation to a child in care, if the state child welfare officer of the relevant state or territory had given written consent to the institution or continuation of the proceedings. The Review noted that, although such written consent could be given as part of the application to register the child order, the absence of a delegated power to give consent may cause difficulty.[43]

30.39 In the Consultation Paper the Commissions asked whether the registration of child protection orders under ss 70C and 70D is a useful strategy that enhances the safety of children, and whether the absence of a delegated power to provide the consent required by s 69ZK was of concern.[44]

Submissions and consultations

30.40 The Chief Justice of the Family Court and the Chief Federal Magistrate noted in their submission that there is no statistical information available on how often child protection orders are registered pursuant to ss 70C and 70D. They expressed the view, however, that the capacity to register orders is important as it minimises the need to rely on parties disclosing the orders.[45] The Magistrates’ Court and the Children’s Court of Victoria also noted that the registration process was useful.[46]

Commissions’ views

30.41 The Commissions note that the registration of child protection orders in the family courts appears to be a useful mechanism. The Commissions’ view is that, while the current registration system is useful, it would be more effective if the courts had access to the orders, without having to rely on parties or child protection agencies to register them. Accordingly, the Commissions recommend below that these orders should be included as a matter of course in the proposed national register.[47] The current proposal in relation to the national register involves the registration and inter-state recognition of family violence protection orders. In the Commissions’ view, many of the arguments relating to the automatic registration and recognition of family violence orders might also be made in relation to child protection orders and it would be sensible to extend the registration and recognition arrangements to include them.

30.42 As no other major issues were identified by stakeholders in relation to the registration of child protection orders in the family courts, the Commissions make no further recommendations in relation to this matter.

Non-publication provisions

30.43 Family violence legislation in every state and territory prohibits the publication of certain information about persons involved in, or associated with, protection order proceedings. However, the legislation across the jurisdictions differs as to:

  • whether non-publication is the default position or is triggered by a court order;

  • whether a harm threshold must be met before a court makes an order for non-publication;

  • whether the non-publication provisions apply indefinitely or only until such time as a court has disposed of the proceedings; and

  • the exceptions that permit publication in some circumstances.

30.44 In some states and territories, the prohibition on publication of certain aspects of protection order proceedings applies by default. Under the Queensland family violence legislation, for example, it is an offence to publish an account of proceedings that identifies, or is likely to identify the aggrieved person, a named person, the respondent, the applicant, the appellant, a witness or a child concerned in the proceedings.[48]

30.45 In comparison, under the Tasmanian family violence legislation, a prohibition on publication only applies following a court order to this effect. However, a court must make an order prohibiting the publication of material which may disclose the identity of a child affected by protection order proceedings.[49]

30.46 In New South Wales (NSW), a prohibition on publication also applies where there is a court order to this effect. A default prohibition applies in relation to information about children.[50] The Northern Territory family violence legislation sets out a harm threshold that must be satisfied before a court can make a non-publication order in relation to a protected person or witness in a proceeding—that is, the court must be satisfied that publication would expose the person to risk of harm.[51] There is, however a default prohibition in relation to publishing identifying information about children.[52]

Exceptions allowing communication of information

30.47 Many of the prohibitions on publication in state and territory family violence legislation include exceptions where publication is with the consent of the person to whom the information relates, or the consent of the court.[53]

30.48 The Queensland family violence legislation includes exceptions for publication with the court’s or the magistrate’s ‘express permission’, or where publication is permitted by regulation.[54] There is also an exception for the communication of transcripts of evidence or other documents to persons concerned in proceedings in a court or to the police for use in such proceedings.[55]

30.49 The Australian Capital Territory (ACT) family violence legislation includes a detailed list of exceptions, including an express exception for information provided to a federal family court under s 60CF of the Family Law Act (‘informing the court of relevant family violence orders’), discussed above.[56] Other exceptions in the ACT legislation include: where information is communicated in accordance with an order of the Magistrates Court or the written permission of a magistrate; and the provision of information to the child protection agency to allow it to exercise its care and protection powers.[57] A court may also make an order to allow publication if it is in the public interest, will promote compliance with the protection order, or is necessary or desirable for the proper functioning of the Act.[58]

30.50 In the Consultation Paper, the Commissions asked a range of questions about the non-publication provisions in state and territory family violence legislation, including whether the provisions were unduly restricting the flow of information from state and territory courts to the federal family courts,[59] and whether state and territory courts should be required to provide details of protection orders and related proceedings to those courts.[60] The Commissions also asked whether there should be express exceptions in the non-publication provisions to allow information to be available in other court proceedings, for example, in the federal family courts.[61]

Submissions and consultations

30.51 A number of submissions stated that these provisions do not appear to be a problem in practice.[62] The Queensland Law Society commented, however, that the Queensland Police Service often referred to the provisions in response to subpoenas and expressed the view that the provisions should be reviewed to ensure that they did not restrict information flow to the police and child protection agencies where necessary.[63] One stakeholder—while expressing support for allowing information to flow to police or others involved in court proceedings—noted that the safety of victims of violence and their children should remain a key priority.[64]

30.52 A number of stakeholders expressed the view that state and territory courts should be required to provide details of protection order proceedings to the federal family courts where there is a related family law matter.[65] The Domestic Violence Prevention Council (ACT) stated that provision of this information to the federal family courts should not be dependent upon a request from one party or the discretion of the other party. The Council noted that one solution would be for federal family courts to have regard to the proposed national register of family violence protection orders.[66]

30.53 On the other hand, the Office of the Privacy Commissioner stated in its submission that prohibitions on publication of identifying information about individuals involved in protection order proceedings are an important privacy protection. The Office did not support modifying the general prohibition on publication and expressed the view that other mechanisms that limit the disclosure of personal information to those who legitimately require it should be used to improve information sharing.[67]

Commissions’ views

30.54 Limiting general publication—by, for example, the media—of identifying information relating to protection order proceedings is important to protect the privacy interests of the parties and others, in particular, children, involved in the proceedings. Stakeholders indicated that the existing non-publication provisions in state and territory family violence legislation did not appear to be unduly restricting the disclosure of information to the federal family courts.

30.55 In the Commissions’ view, however, such provisions should clearly set out where disclosure to other courts and agencies that legitimately require access to the information is allowed. This provides clarity for those being asked to disclose the information, and ensures that any disclosure is consistent with the family violence legislation and with relevant privacy legislation, as the disclosure will be ‘authorised by law’.[68]

30.56 The Domestic Violence and Protection Orders Act 2008 (ACT) provides an instructive starting point. In particular, the ACT legislation makes clear that disclosure of identifying information to the federal family courts under s 60CF of the Family Law Act does not breach the non-publication provision. Other important exceptions in this legislation relate to disclosure:

  • to the child protection agency, to allow the exercise of the agency’s care and protection powers; and

  • where a court is of the view that publication is in the public interest, will promote compliance with the protection order, or is necessary or desirable for the proper functioning of the Act.

The provision also provides a certain amount of flexibility by allowing disclosure on the basis of a court order or the written permission of the magistrate.

30.57 The Commissions are of the view that non-publication provisions in state and territory legislation should be reviewed to ensure that they expressly allow disclosure of information about protection orders and related proceedings—including identifying information—in appropriate circumstances. The exceptions to such provisions should expressly include disclosure of protection orders to the federal family courts under s 60CF of the Family Law Act.

30.58 The Commissions note the proposed development of a national register of state and territory family violence protection orders, which is discussed further below. State and territory family violence legislation may need to be amended to allow protection orders to be included in the national register, and this will provide an opportunity for the states and territories to consider the need for other exceptions. The Commissions’ view is that the proposed national register should be designed to ensure that this information is readily available to the federal family courts and others, such as child protection agencies and the police.

Recommendation 30–3 Non-publication provisions in state and territory family violence legislation should expressly allow disclosure of information in relation to protection orders and related proceedings that contains identifying information in appropriate circumstances, including disclosure of family violence protection orders to the federal family courts under s 60CF of the Family Law Act 1975 (Cth).

Seeking information from child protection agencies

30.59 In each state and territory, the child protection legislation contains provisions for protecting the confidentiality of information collected by child protection agencies or for precluding such information from being admissible in another proceeding.[69] The federal family courts may seek information from child protection agencies either at the request of parties by subpoena—issued under pt 15.3 of the Family Law Rules—or by exercising the courts’ express power to seek information and documents from state and territory agencies set out in s 69ZW of the Family Law Act.

Subpoenas

30.60 The power of a federal family court to compel production of documents from a child protection agency under a subpoena was examined by the High Court in Northern Territory of Australia v GPAO.[70] The specific issue was whether under the former Family Law Rules 1984 (Cth) O 28 r 1 the court could compel production of documents subject to s 97(3) of the Community Welfare Act (NT). Section 97(3) provided that:

A person who is, or has been, an authorized person shall not, except for the purposes of the Act, be required to—

(a) produce in a court a document that has come into his possession or under his control; or

(b) disclose or communicate to a court any matter or thing that has come under his notice, in the performance of his duties or functions under this Act.

30.61 A majority of the court held that the provisions of the Family Law Act did not override s 97(3) of the Community Welfare Act and that the provision was binding on the Family Court by operation of s 79 of the Judiciary Act 1903 (Cth).[71] Section 79 provides that:

The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.

30.62 The High Court found that the provisions of the Family Law Act and the Family Law Rules did not ‘otherwise provide’ in the terms of s 79.[72] Thus, the child protection agency could not be compelled by subpoena to produce the documents to the Family Court.

30.63 By way of contrast, in Queensland s 187 of the Child Protection Act 1999 (Qld) allows disclosure of information if the disclosure is related to a child’s protection or welfare; or is otherwise required or permitted under law. This provision allows disclosure of information held by the Department of Communities to the federal family courts. Section 190 of the Child Protection Act specifically regulates the production of documents held by the Department where required by a party to a court proceeding. Section 190 states that any such request must include information about the people to whom the request relates; the circumstances to which it relates—these must be relevant to the court proceedings; and state the period to which it relates. Section 190(4) provides that a person must not, directly or indirectly, disclose or make use of information obtained other than for a purpose connected with the proceeding.

Power to require the production of documents or information

30.64 Section 69ZW of the Family Law Act provides that the court may make an order in child-related proceedings requiring a prescribed state or territory agency to provide the court with the documents or information specified.[73] These must be documents recording, or information about, one or more of:

(a) any notifications to the agency of suspected abuse of a child to whom the proceedings relate or of suspected family violence affecting the child;

(b) any assessments by the agency of investigations into a notification of that kind or the findings or outcomes of those investigations;

(c) any reports commissioned by the agency in the course of investigating a notification.[74]

30.65 An order under s 69ZW overrides any inconsistent state and territory law,[75] but the agency does not have to comply with the order in relation to:

(a) documents or information not in the possession or control of the agency; or

(b) documents or information that include the identity of the person who made a notification.[76]

30.66 Once information is provided in response to the order, the court must admit into evidence any such information on which it intends to rely.[77] There is qualified protection for the identity of the person who made the notification—if the person does not consent, the court can only disclose their identity if satisfied that it ‘is critically important to the proceedings and that failure to make disclosure would prejudice the proper administration of justice’.[78]

Protocols relating to information sharing

30.67 Information sharing protocols are in place between child protection agencies in a number of jurisdictions—such as NSW and Queensland—and the federal family courts, dealing with a range of issues including requests for information by way of subpoena and under s 69ZW.[79] The Queensland protocol sets out the relevant law, discussed above, and the procedures that apply where a party to a family court proceeding requests the court to issue a subpoena to the Department of Child Safety (now the Department of Communities). The Protocol includes safeguards in relation to subpoenaed documents, for example, that the Registry Manager of the Family Court must ensure that any file inspections are carried out under supervision and that photocopying does not occur unless ordered by the court.[80]

30.68 The Protocol also regulates the disclosure of information in response to an order made under s 69ZW and includes safeguards in relation to such documents, for example, that documents that are not admitted into evidence should be destroyed.[81]

30.69 In consultations, the Commissions heard that there were significant problems associated with information flow from state and territory child protection agencies to family courts in some jurisdictions. The Commissions understand, for example, that the decision in Northern Territory of Australia v GPAO has had an impact on the attitude of some jurisdictions to the exercise of the court’s power under s 69ZW, although the decision itself concerned the power to require production of documents by way of subpoena.

30.70 In the Consultation Paper, the Commissions asked how best to facilitate the information flow between child protection agencies and the family courts. The Commissions proposed, as a minimum, that protocols be developed between federal family courts and state and territory child protection agencies including procedures for responding to subpoenas issued by federal family courts and for dealing with requests for documents and information under s 69ZW of the Family Law Act.

Submissions and consultations

Subpoenas

30.71 A number of stakeholders expressed the view that state and territory legislation should be amended to address the issues raised in Northern Territory v GPAO and to facilitate child protection agencies providing information to the family courts.[82] Some also suggested that the Family Law Act and Rules be amended to require that information be provided.[83]

30.72 Legal Aid NSW noted that the experience of legal practitioners in relation to the production of documents in response to subpoenas appeared to vary in different regions of NSW, noting that while some Community Service Centres (CSCs) were unresponsive, there had been better production in the last two years in a number of regions. Strategies to promote a cooperative response to the subpoena process included ensuring that subpoenas were clear about the information sought, and follow-up telephone contact between the CSC and the practitioner about what was required and what was available.[84]

30.73 One stakeholder commented that resources were required to support child protection agencies to enable them to respond to requests for information.[85]

30.74 The Aboriginal Family Violence Prevention and Legal Service Victoria stated that the Department of Human Services in Victoria usually responded to subpoenas on time, but noted that child protection agencies in other jurisdictions provided more limited information.[86] The Queensland Law Society stated that the protocol between the family courts and the Queensland Department of Communities was working well, and that the Department complies appropriately with requests for information by way of subpoena as well as orders under s 69ZW.[87]

30.75 The Queensland Commission for Children and Young People and Child Guardian expressed support for the development of protocols between the federal family courts and child protection agencies, but stated that the power to compel the production of documents by way of subpoena should also be strengthened to ensure that child protection agencies are required to comply.[88]

Section 69ZW

30.76 The Chief Justice of the Family Court of Australia and the Chief Federal Magistrate stated in their submission that s 69ZW is an important mechanism to provide access to information held by state and territory child protection agencies. The submission noted that the provision generally worked well, but that ‘for reasons that are unclear, section 69ZW has not yet been able to produce similar results in NSW’.[89]

30.77 The submission suggested that relationship building between courts and agencies and perhaps direct access to a contact point in child protection agencies for court staff and independent children’s lawyers would assist. One way to achieve this might be to involve state and territory agencies in the Pathways networks across Australia. The submission also expressed some support for nationally consistent protocols to deal with requests for information under s 69ZW and by way of subpoena, but noted that it remained important to ensure that the enabling legislation was clear.[90]

30.78 A number of other stakeholders also expressed support for the development of protocols between federal family courts and state and territory child protection agencies that include procedures for responding to subpoenas issued by federal family courts and for dealing with requests for documents and information under s 69ZW of the Family Law Act.[91]

Commissions’ views

30.79 It appears that there are a number of legislative and administrative barriers preventing the federal family courts from accessing important information held by child protection agencies in some jurisdictions. Some of these barriers stem from the High Court’s decision in Northern Territory of Australia v GPAO.[92] In the Commissions’ view, states and territories should review and amend, where necessary, their child protection legislation to ensure that the legislation is not preventing child protection agencies from disclosing relevant information to the federal family courts in appropriate circumstances.

30.80 The Commissions note that s 69ZW provides that where the federal family courts request the specified information—notifications of suspected abuse of a child or family violence affecting a child and related assessments and reports—from prescribed agencies, state or territory laws have no effect to the extent that they would hinder or prevent an agency complying with the order.[93] While it would be possible to include a similar provision in relation to requests for information by way of subpoena, in the Commissions’ view a more nuanced outcome could be achieved through the amendment of state and territory legislation to allow information to flow in appropriate and controlled circumstances. The Queensland child protection legislation provides a model in this regard.

30.81 Administrative measures are also necessary to ensure that child protection agencies are aware of, and responsive to, requests for information. The Commissions recommend that federal family courts and state and territory child protection agencies in all states and territories develop protocols that include procedures for dealing with requests for documents and information under s 69ZW and for responding to subpoenas issued by federal family courts.

30.82 The Commissions note that simply putting protocols in place is not sufficient. These arrangements must be given an ongoing profile among departmental and court officers; they must form the basis of an ongoing and responsive relationship between the agencies and the courts; and they must be supported and implemented in practice. The Commissions also recommend, below, that these protocols include comprehensive information sharing arrangements.[94]

Recommendation 30–4 State and territory child protection legislation should not prevent child protection agencies from disclosing to federal family courts relevant information about children involved in federal family court proceedings in appropriate circumstances.

Recommendation 30–5 Federal family courts and state and territory child protection agencies should develop protocols for:

(a) dealing with requests for documents and information under s 69ZW of the Family Law Act 1975 (Cth); and

(b) responding to subpoenas issued by federal family courts.

[5]Family Law Act 1975 (Cth) ss 60CA, 65AA.

[6] Ibid s 60CC(2).

[7] Ibid s 60CC(3)(j).

[8] Ibid s 60CC(3)(k).

[9] Ibid s 60CF(2).

[10]Family Law Rules 2004 (Cth) r 2.05.

[11]Federal Magistrates Court Rules 2001 (Cth) sch 3 applies r 2.05 of the Family Law Rules to proceedings in the Federal Magistrates Court.

[12] Questions have been raised, however, about how often these forms are filed in practice: see, eg, R Chisholm, Family Courts Violence Review (2009), 70.

[13] Family Court of Australia, Form 4—Notice of Child Abuse or Family Violence <www.familylawcourts.
gov.au> at 9 February 2010, pts G, H.

[14] Family Court of Australia, Initiating Application (Family Law) <www.familycourt.gov.au/> at 9 February 2010, 6.

[15] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), Rec 10.

[16] Ibid, Rec 7.1.

[17] F Kelly and B Fehlberg, ‘Australia’s Fragmented Family Law System: Jurisdictional Overlap in the Area of Child Protection’ (2002) 16 International Journal of Law, Policy and the Family 38, 53–54.

[18] R Chisholm, Family Courts Violence Review (2009), Recs 2.3, 2.4.

[19] Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.

[20] Australian Law Reform Commission and New South Wales Law Reform Commission, Family Violence: Improving Legal Frameworks, ALRC Consultation Paper 1, NSWLRC Consultation Paper 9 (2010), Proposal 8–2.

[21] Ibid, Question 14–6.

[22] Ibid, Proposal 14–1.

[23] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; National Abuse Free Contact Campaign, Submission FV 196, 26 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; J Stubbs, Submission FV 186, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Confidential, Submission FV 183, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Law Council of Australia, Submission FV 180, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Peninsula Community Legal Centre, Submission FV 174, 25 June 2010; Confidential, Submission FV 171, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 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; 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; K Johnstone, Submission FV 107, 7 June 2010; Confidential, Submission FV 105, 6 June 2010; Confidential, Submission FV 81, 2 June 2010; A Harland, Submission FV 80, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; M Condon, Submission FV 45, 18 May 2010; P Easteal, Submission FV 40, 14 May 2010; C Humphreys, Submission FV 04, 23 August 2009.

[24] Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[25] Legal Aid NSW, Submission FV 219, 1 July 2010.

[26] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[27] Confidential, Submission FV 164, 25 June 2010; P Parkinson, Submission FV 104, 5 June 2010.

[28] Confidential, Submission FV 164, 25 June 2010.

[29] Family Court of Australia, Parenting Questionnaire <http://www.familylawcourts.gov.au/wps/wcm
/connect/FLC/Home/Forms/Family+Court+of+Australia+forms/FCOA_form_Questionnaire_Parenting> at 12 July 2010.

[30] Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010.

[31] 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.

[32] Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Solomums Australia for Family Equity, Submission FV 200, 28 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; Confidential, Submission FV 96, 2 June 2010; Confidential, Submission FV 71, 1 June 2010; C Pragnell, Submission FV 70, 2 June 2010; Confidential, Submission FV 69, 2 June 2010; P Easteal, Submission FV 40, 14 May 2010.

[33] Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[34] Australian Government Attorney-General’s Department, Submission FV 166, 25 June 2010. See also: Confidential, Submission FV 96, 2 June 2010.

[35] The Australian Association of Social Workers, Submission FV 224, 2 July 2010; Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 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.

[36] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010.

[37] Family Court of Australia, Parenting Questionnaire <http://www.familylawcourts.gov.au/wps/
wcm/connect/FLC/Home/Forms/Family+Court+of+Australia+forms/FCOA_form_Questionnaire_Parenting> at 12 July 2010.

[38]Family Law Act 1975 (Cth) s 4: the definition of ‘State child order’ includes orders determining with whom a child under 18 years of age is to live or spend time with, or that provides for contact, access or custody.

[39] Ibid s 70E.

[40] R Chisholm, The Child Protection–Family Law Interface (2009), 31.

[41]Family Law Rules 2004 (Cth) r 23.01A.

[42] R Chisholm, The Child Protection–Family Law Interface (2009), 34.

[43] Ibid, 35.

[44] Consultation Paper, Question 14–11.

[45] 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.

[46] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010.

[47] Rec 30–18.

[48]Domestic and Family Violence Protection Act 1989 (Qld) s 82(1).

[49]Family Violence Act 2004 (Tas) s 32(2).

[50]Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 45.

[51]Domestic and Family Violence Act 2007 (NT) s 26.

[52] Ibid s 123.

[53] See, for example, Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 45(4)(b).

[54]Domestic and Family Violence Protection Act 1989 (Qld) s 82(1)(b).

[55] Ibid s 82(3).

[56]Domestic Violence and Protection Orders Act 2008 (ACT) ss 111, 112.

[57] Ibid, sch 2, 2.2.

[58] Ibid s 112(3).

[59] Consultation Paper, Question 10–17.

[60] Ibid, Question 10–19.

[61] Ibid, Question 10–18.

[62] Queensland Law Society, Submission FV 178, 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.

[63] Queensland Law Society, Submission FV 178, 25 June 2010. At the time of writing, the Domestic and Family Violence Protection Act 1989 (Qld) was under review by the Queensland Government. See Department of Communities (Qld), Review of the Domestic and Family Violence Protection Act 1989: Consultation Paper (2010).

[64] Confidential, Submission FV 184, 25 June 2010.

[65] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010; Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010.

[66] Domestic Violence Prevention Council (ACT), Submission FV 124, 18 June 2010.

[67] Office of the Privacy Commissioner, Submission FV 147, 24 June 2010.

[68] Privacy legislation and the exception for disclosure that is ‘required or authorised by law’ is discussed further below.

[69]Children and Young Persons (Care and Protection) Act 1998 (NSW) s 29; Children, Youth and Families Act 2005 (Vic) ss 41, 129–130; Child Protection Act 1999 (Qld) ss 186–8; Children and Community Services Act 2004 (WA) ss 23, 124F, 141, 240–241; Children’s Protection Act 1993 (SA) ss 13, 52L; Children, Young Persons and Their Families Act 1997 (Tas) ss 16, 103; Children and Young People Act 2008 (ACT) ss 846, 868–71; Care and Protection of Children Act 2007 (NT) ss 150, 195, 221.

[70]Northern Territory of Australia v GPAO (1999) 196 CLR 553.

[71] Ibid, 592.

[72] Ibid, 589.

[73] The agencies that have been prescribed in Family Law Regulations 1984 (Cth) sch 9 are the child protection agencies and the police in each state and territory.

[74]Family Law Act 1975 (Cth) s 69ZW(2).

[75] Ibid s 69ZW(4).

[76] Ibid s 69ZW(3).

[77] Ibid s 69ZW(5).

[78] Ibid s 69ZW(6). The agency must be notified and given an opportunity to respond in such circumstances: s 69ZW(7).

[79] Family Court of Australia, Protocol between the Family Court of Australia and the NSW Department of Community Services (2005); Federal Magistrates Court of Australia, Protocol between the Federal Magistrates Court of Australia and the NSW Department of Community Services (2009); Family Court of Australia, Protocol between the Department of Child Safety Queensland, the Family Court of Australia and the Federal Magistrates Court of Australia (2007).

[80] Family Court of Australia, Protocol between the Department of Child Safety Queensland, the Family Court of Australia and the Federal Magistrates Court of Australia (2007), [6.4].

[81] Ibid, [6.3].

[82] Law Society of New South Wales, Submission FV 205, 30 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010.

[83] Confidential, Submission FV 184, 25 June 2010; National Council of Single Mothers and their Children Inc, Submission FV 144, 24 June 2010.

[84] Legal Aid NSW, Submission FV 219, 1 July 2010.

[85] C Humphreys, Submission FV 04, 23 August 2009.

[86] Aboriginal Family Violence Prevention and Legal Service Victoria, Submission FV 173, 25 June 2010.

[87] Queensland Law Society, Submission FV 178, 25 June 2010.

[88] Queensland Commission for Children and Young People and Child Guardian, Submission FV 63, 1 June 2010.

[89] 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.

[90] Ibid.

[91] Magistrates’ Court and the Children’s Court of Victoria, Submission FV 220, 1 July 2010; Wirringa Baiya Aboriginal Women’s Legal Centre Inc, Submission FV 212, 28 June 2010; Law Society of New South Wales, Submission FV 205, 30 June 2010; Women’s Legal Service Victoria, Submission FV 189, 25 June 2010; Women’s Legal Service Queensland, Submission FV 185, 25 June 2010; Confidential, Submission FV 184, 25 June 2010; Women’s Legal Services NSW, Submission FV 182, 25 June 2010; Queensland Law Society, Submission FV 178, 25 June 2010; Justice for Children, Submission FV 177, 25 June 2010; Berry Street Inc, Submission FV 163, 25 June 2010; UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010; Confidential, Submission FV 130, 21 June 2010; N Ross, Submission FV 129, 21 June 2010; Confidential, Submission FV 82, 2 June 2010; C Pragnell, Submission FV 70, 2 June 2010.

[92]Northern Territory of Australia v GPAO (1999) 196 CLR 553.

[93]Family Law Act 1975 (Cth) s 69ZW(4).

[94] Recs 30–16, 30–17.