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Family Law Amendment (Risk Screening Protections) Bill 2020

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2019-2020

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

SENATE

 

 

Family Law Amendment (Risk screening protections) bill 2020

 

 

EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the

Attorney-General, the Honourable Christian Porter MP)

 

                                                                                                        



 

family law amendment (risk screening protections) bill 2020

General Outline

1.                    The Family Law Amendment (Risk Screening Protections) Bill 2020 (the Bill) will amend the Family Law Act 1975 to establish protections for sensitive information generated through, and confer immunity on court workers involved in, family safety risk screening in the federal family law courts.

2.                    On 17 December 2019, as part of the 2019-20 MYEFO, the Government announced $13.5 million for the Family Court of Australia and Federal Circuit Court of Australia (the federal family law courts) to pilot a systematic approach to identifying and managing family safety risks in the Adelaide, Brisbane and Parramatta registries.

3.                    The purpose of family safety risk screening is to enhance the safety of persons engaged in litigation in the court. It also assists the court to determine the urgency and priority of cases, provide safety planning to persons affected by family violence, assist persons engaged in litigation in the court to identify issues which impact on the safety of themselves or another person, and refer persons engaged in litigation to services to deal with personal and interpersonal issues, issues relating to the care of children, and/or family violence.

4.                    This Bill will support the implementation of the pilot of family safety risk screening in the federal family law courts, by amending the Family Law Act to protect the sensitive information generated through the risk screening process. Although these measures will initially support family safety risk screening delivered pursuant to the pilot, the amendments will continue to provide protection should the risk screening process in future be extended and/or expanded to other registries.

5.                    The pilot will involve screening parenting matters for family safety risks at the point of filing, triaging matters according to the level of identified risk, providing additional assistance to at-risk parties, and operating a specialist list in the Federal Circuit Court of Australia to resolve cases assessed as at high-risk of family violence. A differentiated case management approach will allow court resources to be directed efficiently to improve family safety, reduce delays for litigants and alleviate judicial workload pressures.

6.                    Parties who file or respond to parenting applications at one of the three pilot locations will be asked to complete an online risk screening questionnaire and, where appropriate, offered information about safety planning and support services as part of this process. Those parties who are identified through this initial risk screening as being at higher risk will receive further support from a family counsellor, who will conduct a follow-up risk assessment; develop safety and wellbeing plans, including for attendance at court events; and offer service referrals. Low risk cases may be targeted for court-ordered family dispute resolution to assist litigants to resolve their matters as soon as possible.

7.                    The new family safety risk screening process responds to key recommendations to improve the family law system and family safety, including:

·            the Australian Law Reform Commission’s 2019 report Family Law for the Future - An Inquiry into the Family Law System , which suggested the establishment of a new list to hear matters that raise issues of risk and complexity warranting a specialised response, particularly where current and dynamic risk issues are identified

·            the House of Representatives Standing Committee on Social Policy and Legal Affairs’ 2017 report A better family law system to support and protect those affected by family violence , which recommended early risk assessment and improved triaging and case management of matters filed in the courts, and the inclusion of parenting matters involving family violence in a specialised list (recommendations 3, 5 and 21), and

·            Women’s Legal Services Australia’s Safety First in Family Law Plan, which recommended court based family violence risk assessment practices, a specialist family violence pathway and a family violence informed case management process.

8.                    Existing protections in the Family Law Act do not cover all of the highly sensitive information that will be obtained and generated through the risk screening process. This Bill will ensure that this sensitive information is confidential and inadmissible, except in limited and appropriate circumstances. The Bill will also offer immunity to court workers undertaking the novel roles required to administer the risk screening process.

9.                    This Bill has been developed in close consultation with the federal family law courts. The protections have been modelled on the existing confidentiality and admissibility provisions for family counselling (sections 10D and 10E of the Family Law Act). The immunity being conferred on court workers by the Bill reflects the protection afforded to family consultants under section 11D of the Family Law Act.

10.                The Bill will ensure that parties to family law proceedings can freely and confidently participate in the risk screening process, without fear of their responses being used against them in their family law (or other) proceedings. This is particularly important for protecting family violence victims in high-risk cases, and for maintaining the accuracy and reliability of the risk screening information used to triage matters.

FINANCIAL IMPACT

11.                There are no financial implications from implementing the measures in the Bill. Funding for the family safety risk screening pilot was announced as part of the 2019-20 MYEFO.





STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS

Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011

Family Law Amendment (Risk Screening Protections) Bill 2020

1.       This Bill is compatible with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 .

Overview of the Bill

2.       The Bill would make amendments to the Family Law Act 1975 to protect sensitive information generated through, and confer immunity on court workers involved in, family safety risk screening in the Family Court of Australia or Federal Circuit Court of Australia (the federal family law courts).

3.       The family safety risk screening process will be a new process in the federal family law courts. The Bill would introduce key concepts associated with the process into the Family Law Act, including:

·       family safety risk screening person’ - staff, officers, contractors or subcontractors of the federal family law courts,

·       ‘family safety risk screening process’ - the process carried out by a family safety risk screening person to identify persons or children who are at risk of family violence or other risks to safety, and

·       ‘family safety risk screening information’ - information or documents obtained or created during the family safety risk screening process.

4.       The Bill would amend the Family Law Act to provide that:

a)     family safety risk screening information is confidential and cannot be disclosed, except in limited circumstances

b)    family safety risk screening information is inadmissible, except in limited circumstances, and

c)     court workers, for example registrars and family counsellors, have immunity when involved in risk screening processes.

 

Confidentiality

5.       The amendments would ensure that family safety risk screening persons cannot disclose family safety risk screening information, unless a specified exception applies.

 

6.       Disclosure of family safety risk screening information would be allowed in the following circumstances:

·          to protect a child from the risk of harm

·          to prevent or lessen serious threats to the life or health of a person, or to the property of a person

·          to report the commission or likely commission of an offence involving violence against a person or intentional damage to property, or

·          to assist an independent children’s lawyer.

 

7.       Disclosure of family safety risk screening information would also be authorised where disclosure was made:

·          in order to comply with a Commonwealth, state or territory law

·          to the party who undertook the relevant risk screening

·          with the consent of the party who undertook the risk screening or, if the party is a child, with the consent of a court

·          to another risk screening person, or

·          in order to provide non-personal information for the purposes of research relevant to families.

Admissibility

8.       The amendments would ensure that family safety risk screening information is inadmissible in any court or legal proceedings.

9.       The amendments would also ensure that evidence of anything said, or any admission made, by or to a person to whom a family safety risk screening person refers a party is inadmissible in any court or legal proceedings.

10.   An exception would apply where family safety risk screening information or evidence indicates that a child has been abused or is at risk of abuse.

 

Immunity

11.   The amendments would also ensure that a family safety risk screening person, when performing his or her functions as a family safety risk screening person, has the same protection and immunity as that afforded to a judge of the Family Court of Australia in performing the functions of a judge.

Human rights implications

12.   The Bill engages the following human rights:

·          Eradication of discrimination against women: Articles 2, 3 and 16 of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW),

·          Rights of equality and non-discrimination: Articles 2, 16 and 26 of the International Covenant on Civil and Political Rights (ICCPR),

·          Promotion of the best interests of the child and the protection of children from violence, abuse or neglect: Articles 3(1), 3(2) and 19(1) of the Convention on the Rights of the Child (CRC),

·          Protection of children on dissolution of a marriage: Articles 23(4) and 24(1) of the (ICCPR)

·          Freedom from violence and abuse, elimination of discrimination, and respect for home and the family: Articles 16(1) and 23 of the Convention on the Rights of Persons with Disabilities (CRPD) , and

·          Right to a fair trial and fair hearing: Article 14 of the ICCPR.

Eradication of discrimination against women: Articles 2, 3 and 16 of the CEDAW; Rights of equality and non-discrimination: Articles 2, 16 and 26 of the ICCPR

13.   The CEDAW provides for key principles of equality which cover many aspects of women’s lives, including political participation, health, education, employment, marriage, family relations and equality before the law. In particular:

·       Article 2 provides that parties agree to pursue the elimination of discrimination against women, including by introducing new laws or policies, changing existing discriminatory laws and providing sanctions for discrimination where appropriate.

·       Article 3 requires parties to take appropriate measures to ensure women’s full development and advancement, so that they can enjoy human rights and fundamental freedoms on the same basis as men.

·       Article 16 requires parties to take appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations, including to ensure men and women are afforded the same rights and responsibilities during marriage and at its dissolution.

14.   The ICCPR recognises the inherent dignity of the equal and inalienable rights of all people, and that the ideal of free human beings can only be achieved if conditions are created whereby everyone may enjoy his or her civil and political rights, as well as his or her economic, social and cultural rights. In particular:

·       Article 2 provides that parties agree to respect and ensure to all individuals the rights recognised in the ICCPR, without distinction of any kind, including on the basis of sex or any other status. Article 16 provides that everyone shall have the right to recognition everywhere as a person before the law.

·       Article 26 provides that all persons are equal before the law and are entitled to the equal protection of the law, without any discrimination. It also provides that the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground, including on the basis of sex or any other status.

15.     Discrimination against women includes gender-based violence - that is, violence that is directed against a woman because she is a woman, or that affects women disproportionately. Although family violence is perpetrated by both men and women, and against both men and women, and the Family Law Act is accordingly gender-neutral, the majority of those who experience family violence are women. The measures in this Bill seek to better protect and assist victims of family violence, and will consequently address the impacts on women of gender-based violence.

16.     The Bill will support risk screening in the federal family law courts through a pilot for parenting matters in selected registries. This pilot will involve a risk screening process that will identify risks to safety, and assist women who are at risk of family violence. The early identification and ongoing assessment and management of risks to women’s safety, particularly through safety planning and service referrals, will support women experiencing family violence as they navigate the family law system.

17.     The risk screening process will require participants to disclose sensitive information relating to risks to their own, or their children’s, safety. This sensitive information is not protected by the existing confidentiality or admissibility provisions in the Family Law Act. The Bill will ensure the confidentiality and inadmissibility of this information so that parties, particularly those at risk of family violence, can freely and confidently participate in the risk screening process, without fear that the information they provide will be used against them during litigation.

18.     Victims of family violence, who are most frequently women, can be reluctant to participate in family law proceedings, particularly where perpetrators may attempt to use the proceedings to inflict further abuse. The Bill will ensure that perpetrators of family violence cannot gain access to the information a victim of family violence provides in the risk screening process, which will encourage women to provide clear and truthful information that will enable risks to their safety to be accurately identified and assessed. This will help to ensure that women are appropriately protected from family violence, and that they are referred to appropriate support services.

19.     This new law therefore supports the elimination of discrimination against women by ensuring women’s full participation in family law proceedings, supporting their full development and advancement on the same basis as men.

Best interests of the child and the protection of children on dissolution of a marriage, and generally: Articles 3(1), 3(2) and 19(1) of the CRC; and Articles 23(4) and 24(1) of the ICCPR

20.   The CRC recognises that children have special vulnerabilities, are entitled to special care and assistance, and should grow up in a family environment in an atmosphere of happiness, love and understanding. In particular:

·       Article 3(1) provides that in all actions concerning children, including by courts of law, the best interests of the child shall be a primary consideration.

·       Article 3(2) requires parties to ensure children such protection and care as is necessary for their well-being, taking into account the rights and duties of his or her parents.

·       Article 19(1) requires parties to take all appropriate legislative measures to protect children from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse.



21.   The ICCPR provides for fundamental civil and political rights which derive from the inherent dignity of each person, and makes special provision for children. In particular:

·       Article 23(4) requires parties to take appropriate steps to ensure provision is made for the protection of children on the dissolution of a marriage.

·       Article 24(1) provides for protection for all children, without discrimination, by virtue of their status as minors.

22.   The Bill will support a risk screening process in the federal family law courts, which will allow the prompt identification and ongoing management of family safety risks. The Bill will facilitate the courts’ confidential referral of parties to appropriate support services, including drug and alcohol or mental health support services, behavioural change programs and services related to the care of children, assisting them to address issues that may impact on their ability to protect and care for their children.

23.   The Bill ensures that the safety and welfare of the child, including the need to protect the child from being subjected or exposed to abuse or family violence, is a primary consideration within the risk screening process. While the Bill will protect the confidentiality and inadmissibility of information generated through the risk screening process, this will include important exceptions. These include allowing a person conducting risk screening to disclose information when the person reasonably believes that disclosure is necessary to protect a child from the risk of physical or psychological harm, and allowing information indicating abuse of a child to be admitted into evidence where this evidence would otherwise not be available.

24.   This new law prioritises the best interests of children, as well as their protection from harm, by enabling the process by which courts will be able to identify and manage risks to children’s, and their family members’, safety.

Freedom from violence and abuse, access to justice and respect for home and the family: Articles 16(1) and 23 of the CRPD

25.   The purpose of the CRPD is to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity. In particular:

·       Article 16(1) requires parties to take all appropriate legislative, administrative, social, educational and other measures to protect persons with disabilities, both within and outside the home, from all forms of exploitation, violence and abuse, including their gender-based aspects.

·       Article 23 requires parties to take effective and appropriate measures to eliminate discrimination against persons with disabilities in all matters relating to marriage, family, parenthood and relationships, on an equal basis with others.

26.   The Bill engages these human rights, as people, especially women, with disabilities, including those who may participate in risk screening, are disproportionately affected by family violence. As the measures in this Bill seek to better protect and assist victims of family violence, it will consequently address the impacts on women of intersecting gender and disability-based violence.

27.   Women with disability are particularly vulnerable to violence due to a combination of gender and disability-based discrimination, and may experience the social stigma attached to both disability and family violence. These women may face unique forms of abuse whilst experiencing family violence, including in the context of relationship breakdowns and family law proceedings.

28.   The Bill will enable the courts to undertake early detection of risk and make appropriate and confidential referrals for appropriate support. The Bill will also allow the courts to appropriately manage risks, by taking into account the specific circumstances of women with disabilities as they navigate the family law system.

29.   Litigation is a known stressor for family violence. The Bill will ensure that information provided or communications disclosed during the risk screening process will remain confidential and inadmissible in court proceedings, thereby allowing women with a disability to engage confidently in litigation without fear of violence, ultimately providing them with better outcomes in family law disputes.

30.   By supporting the provision of vital support services to people with disabilities and identifying those who are particularly vulnerable, the measures under the Bill will support the elimination of discrimination and violence against, and the promotion of equality for, people with disabilities in the context of marriage, family and relationship breakdown.

Right to a fair trial and fair hearing: Article 14 of the ICCPR

31.   Article 14 of the ICCPR guarantees the right to a fair and public hearing in civil proceedings. The right to a fair trial and fair hearing recognises that all persons are equal before courts and tribunals.

32.   The Bill engages this human right, as it regulates the rules of evidence in a court or tribunal, by making sensitive information generated through the family safety risk screening process confidential and inadmissible.

33.   The objective of the family safety risk screening process is to identify risk in order to determine the urgency of family law matters and the resources provided to such cases. The process will improve the safety of parties who may have experienced family violence, and children who may have experienced associated risks such as child abuse.

34.   By ensuring confidence in the confidentiality and inadmissibility of family safety risk screening information, parties will be encouraged to be open and honest in disclosing sensitive information in screening, allowing the courts to promptly and accurately identify family safety risks, and triage matters accordingly.

35.   It is appropriate that the information be inadmissible and confidential, as family safety risk screening information is based on subjective information that parties provide at a single point in time. Risk screening information is therefore not intended to have the same purpose as, or replace, evidence in proceedings. Evidence is provided through multiple other means such as affidavits, notices of risk, subpoenaed material admitted into evidence, and expert reports.

 

36.   The Bill will ensure that all parties in parenting matters can freely, equally and confidently participate in family law proceedings. It will place all parties on an equal footing, promoting participation without fear that risk screening information can be weaponised during the litigation process.

Conclusion

37.   The Bill is compatible with the human rights outlined above because it advances the protection of human rights.



NOTES ON CLAUSES

Preliminary

Clause 1 - Short title

12.                This clause provides for the short title of the Act to be the Family Law Amendment (Risk Screening Protections) Act 2020 (the Act).

Clause 2 - Commencement

13.                This clause provides for the commencement of each provision in the Bill, as set out in the table.

14.                Item 1 in the table provides that the sections 1 to 3 and anything in this Act that is not covered elsewhere in the table commences the day the Act receives Royal Assent.

15.                Item 2 in the table provides that Schedule 1, Part 1 of the Act - the main amendments -  will commence on the seventh day after the Act receives Royal Assent.

16.                This seven day period is required to allow the federal family law courts time to make any necessary changes to case management processes and documents, to facilitate implementation of the amendments. The seven day period will also provide an opportunity for  the Chief Executive Officer to determine, by notifiable instrument, a risk screening tool under new subsection 10T(3).

17.                Item 3 in the table provides that Schedule 1, Part 2 - amendments contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2020 - will commence the later of:

·          immediately after the commencement of Schedule 1, Part 1 (the main amendments), and

·          immediately after the commencement of the Federal Circuit and Family Court of Australia Act 2020

However, if the Federal Circuit and Family Court of Australia Act 2020 does not commence, then Schedule 1, Part 2 of this Act will not commence at all.

Clause 3 - Schedules

18.                This is a formal clause that enables each Act specified in a Schedule to the Bill to be amended in accordance with the items set out in the relevant Schedule.

Schedule 1 - Amendments

Part 1 - Main amendments

Family Law Act 1975

Item 1 - Subsection 4(1)

19.                Existing subsection 4(1) ‘Interpretation’ outlines the meaning of terms used in the Family Law Act 1975 , the Family Law Rules 2004 , and the Federal Circuit Court Rules (2001) (unless a contrary intention appears).

20.                Item 1 would insert new terms relating to family safety risk screening into subsection 4(1). This is necessary as family safety risk screening will be a new process in the federal family law courts.

21.                Item 1 would provide that ‘family safety risk screening information’ has the meaning given by new section 10S, ‘family safety risk screening person’ has the meaning given by new section 10R, and ‘family safety risk screening process’ has the meaning given by new section 10T.

Item 2 - After Part II

22.                Item 2 would insert new ‘Part IIA - Family safety risk screening’ into the Family Law Act. Part IIA would contain ‘Division 1 - Preliminary’ and ‘Division 2 - Protection of family safety risk screening information’.

Division 1 - Preliminary

23.                New ‘Division 1 - Preliminary’ would insert a simplified outline of new Part IIA, and definitions relating to family safety risk screening.

New section 10Q - Simplified outline of this Part

24.                New section 10Q provides a simple outline of the provisions contained in new ‘Part IIA - Family safety risk screening’.

25.                The simplified outline is included to assist readers to understand the substantive provisions. However, the outline is not intended to be comprehensive and readers should rely on the substantive provisions in new Part IIA.

New section 10R - Definition of family safety risk screening person

26.                New section 10R would define ‘family safety risk screening person’ for the purposes of new Part IIA.

Officer or staff member

27.                New subsection 10R(a) would provide that an officer or staff member of the Family Court of Australia or the Federal Circuit Court of Australia is a family safety risk screening person. Officers and staff members of the Family Court of Australia and Federal Circuit Court of Australia include the Chief Executive Officer and Principal Registrar, Registrars, Deputy Registrars, Registry Managers, family consultants, and staff engaged under the Public Service Act 1999 .

Family counsellor

28.                New subsection 10R(b) would provide that a family counsellor is a family safety risk screening person. ‘Family counsellor’ is defined in existing section 10C of the Family Law Act.

Contractor

29.                New subsection 10R(c) would provide that a contractor engaged on behalf of the Family Court of Australia and/or the Federal Circuit Court of Australia is a family safety risk screening person. It is intended that this capture family safety risk screening persons who, under general principles of employment law, may be determined to be contractors rather than employees.

Officer, employee or subcontractor of a contractor

30.                New subsection 10R(d) would provide that an officer, employee or subcontractor of a contractor engaged on behalf of the Family Court of Australia and/or Federal Circuit Court of Australia is a family safety risk screening person. It is intended that this capture family safety risk screening persons who are engaged through labour-hire firms (for example, recruitment agencies or employment agencies).

New section 10S - Definition of family safety risk screening information

31.                New section 10S would define ‘family safety risk screening information’ for the purposes of new Part IIA.

Information or documents obtained, generated or created by a family safety risk screening person

32.                New paragraph 10S(1)(a) would provide that oral or written information that is obtained or generated by a family safety risk screening person in connection with a family safety risk screening process (as defined in new section 10T) is ‘family safety risk screening information’. New paragraph 10S(1)(a) would also provide that any documents obtained or created by family safety risk screening persons in connection with the family safety risk screening process is ‘family safety risk screening information’.

33.                New paragraph 10S(1)(a) would ensure that the answers and/or results from a risk screening questionnaire, any oral or written information that a family safety risk screening person generates based on the questionnaire, and any documents associated with the risk screening process, will be classified as ‘family safety risk screening information’, and will therefore be protected by the provisions in new Division 2 of Part IIA.

Information about whether or not a party participated in a family safety risk screening process

34.                New paragraph 10S(1)(b) would provide that information about whether or not a party to proceedings under the Family Law Act participated in a family safety risk screening process is ‘family safety risk screening information’. This will ensure that such information is protected by the provisions in new Division 2 of Part IIA. Rendering such information confidential and inadmissible is intended to help to promote parties’ confidence in the process and ensure that parties are free to choose whether or not to participate in the voluntary family safety risk screening process, as no inferences (whether positive or negative) will be able to be drawn about that decision.

Examples of family safety risk screening information

35.                New subsection 10S(2) would provide examples of the types of documents and information covered by new subsection 10S(1). These examples include reports, recommendations, and referrals created by a family safety risk screening person as a result of the information referenced in new subsection 10S(1). The examples are non-exhaustive, and do not limit the definition provided in new subsection 10S(1).

New section 10T - Definition of family safety risk screening process

36.                New section 10T would define ‘family safety risk screening process’ for the purposes of new Part IIA.

37.                New subsection 10T(1) would outline that a family safety risk screening process is a process carried out by a family safety risk screening person in relation to a party to family law proceedings, in order to identify persons at risk of family violence, children at risk of abuse, neglect or family violence, or other risks to the safety of persons.

38.                ‘Family violence’ is defined in existing section 4AB, and ‘abuse’ in relation to a child is defined in existing subsection 4(1). It is intended that other risks to the safety of persons may include mental health issues and/or drug or alcohol misuse, which can compound family violence issues. New subsection 10T(1) would make it clear that the purpose of identifying these risks is to determine the urgency and priority of the proceedings, and to assist the court with case management.

39.                 New subsection 10(T)(1) would provide that a process that is attempted to be carried out also meets the definition of a family safety risk screening process. This is to ensure that family safety risk screening information is protected where parties choose not to participate, or where the process is only partially completed.

Family safety risk screening process must involve the use of a risk screening tool

40.                New subsection 10T(2) would provide that the family safety risk screening process must involve the use of a risk screening tool. New subsection 10T(3) would provide that the Chief Executive Officer may determine a risk screening tool by notifiable instrument. ‘Chief Executive Officer’ is defined in existing subsection 4(1), and means the Chief Executive Officer and Principal Registrar of the Family Court.

41.                Explicitly providing that the family safety risk screening process must involve the use of a risk screening tool, as determined by the Chief Executive Officer, is intended to confine the application of Part IIA to the intended risk screening process. That is, it is intended to make it clear that other risk screening processes conducted in the courts, such as risk screening undertaken by Family Consultants per section 11F and 62G events, are not captured by new Part IIA.

42.                An evidence-based universal risk screening tool, ‘Family Doors Triage’, has been developed for use by the federal family law courts to assist with the detection of risk and to support the development of tailored responses. New subsection 10T(3) would allow the Chief Executive Officer to determine this risk screening tool for the purposes of new subsection 10T(2).

43.                Allowing for the Chief Executive Officer to determine, by notifiable instrument, the relevant risk screening tool is intended to provide a simple process for ensuring that new Part IIA remains effective should the name of Family Doors Triage change, or a new tool be developed.

44.                It is appropriate that the determination of the risk screening tool in new subsection 10T(3) be by notifiable instrument, as it does not meet the requirements of a legislative instrument as provided for in subsection 8(4) of the Legislation Act 2003 . Subsection 8(4) of the Legislation Act provides that an instrument is a legislative instrument if:

·          the instrument is made under a power delegated by the Parliament, and

·          the instrument determines or alters the law, rather than determining particular circumstances in which the law applies, and

·          has the effect of affecting a privilege or interest, imposing an obligation, creating a right, or varying or removing an obligation or right.

The determination of the risk screening tool provided for in new subsection 10T(3) does not alter the content of the law. Rather, it will be used to carry out the requirements of the family safety risk screening process as provided for in new subsection 10T(1).

45.                It is appropriate that the determination instrument provided for in new subsection 10T(3) be notifiable, as it is likely to be of interest to the public, who would benefit from access to an authoritative form of the instrument from a centrally managed source.

Family safety risk screening process may involve risk assessment

46.                New subsection 10T(4) would make it clear that risk assessments conducted by family counsellors after the initial risk screen may be part of the family safety risk screening process. This is intended to make it clear that assessments, which are an important aspect of ensuring that matters can be appropriately triaged and directed to the most appropriate case management pathway based on risk classification, are intended to be covered by the protections in new Part IIA.

Division 2 - Protection of family safety risk screening information

47.                New ‘Division 2 - Protection of family safety risk screening information’ would insert new sections 10U, 10V, and 10W, which would provide that family safety risk screening information is confidential and inadmissible (with limited exceptions), and confer immunity on family safety risk screening persons.

New section 10U - Confidentiality of family safety risk screening information

Family safety risk screening person must not disclose family safety risk screening information unless required or authorised

48.                New subsection 10U(1) would provide that a family safety risk screening person must not disclose family safety risk screening information, unless the disclosure is required or authorised by new section 10U.

49.                New subsection 10U(1) is intended to ensure that a family safety risk screening person cannot be compelled to disclose risk screening information, including to state or territory agencies, or in the context of proceedings in state or territory courts or tribunals. This is intended to ensure that parties are able to freely and confidently participate in the family safety risk screening process, without fear that the information they provide may be used against them in other contexts. Appropriate exceptions to this general rule are provided for in new subsections 10U(2) to (7).

50.                New section 10U would not contain a sanction for a breach of the confidentiality requirements. Such a sanction would be unnecessary, as the purpose of the provisions is to ensure that family safety risk screening persons cannot be compelled to disclose family safety risk screening information. This is consistent with the confidentiality provisions in existing sections 10D (family counselling) and 10H (family dispute resolution), which do not contain sanctions for non-compliance.

Family safety risk screening information must be disclosed if necessary to comply with law

51.                New subsection 10U(2) would provide that a family safety risk screening person must disclose family safety risk screening information if the person reasonably believes disclosure is necessary to comply with a Commonwealth, state, or territory law. This is intended to ensure that family safety risk screening persons comply with their legal obligations, including mandatory reporting obligations in relation to child abuse.

52.                New subsection 10U(2) reflects the equivalent requirement for family counsellors in existing 10D(2).

Family safety risk screening information may be disclosed to the relevant party

53.                New subsection 10U(3) would provide that a family safety risk screening person may disclose family safety risk screening information to the party who undertook the risk screening process where that information relates to that party. This means that a family safety risk screening person may share the information and documents, including reports and referrals, that result from a party’s risk screening process with that party.

Family safety risk screening information may be disclosed with the party’s consent, or, where the party is under 18, the court’s consent

54.                New paragraph 10U(4)(a) would provide that, where a party who undertakes a risk screening process is 18 years old or over, a family safety risk screening person may disclose information relating to that party if the party consents. New paragraph 10U(4)(b) would provide that, where a party is under 18 years old, that consent must be provided by a court.

55.                This means that, with a party’s or court’s consent, a family safety risk screening person will be able to disclose information to a support service to which a party is referred.

56.                While it is unlikely that a person who is under 18 years old will be a party to family law proceedings, and therefore asked to participate in family safety risk screening, it is possible in certain circumstances. For example, a person under 18 may have a child and be an applicant or respondent in parenting proceedings. Similarly, a sibling who is under 18 may institute proceedings concerning their younger sibling. In these circumstances, it is appropriate that a court be able to consent to disclosure, in order to provide an additional level of oversight for parties who may be more vulnerable on account of their age.

57.                New paragraph 10U(4)(a) is consistent with existing paragraph 10D(3)(a), which allows a family counsellor to disclose a communication with the consent of a person who is over 18.

58.                New paragraph 10U(4)(b) differs from existing paragraph 10D(3)(a), which in addition to allowing a family counsellor to disclose a communication made by a person under 18 with the consent of a court, also allows disclosure with the consent of persons who have parental responsibility for the child. In the context of family counselling, a person under 18 is likely to be the child of the parties to the proceedings. It is therefore appropriate that disclosure be permitted where all persons with parental responsibility consent. However, a person under 18 will only be asked to participate in family safety risk screening when they themselves are a party to the proceedings. It is therefore not appropriate for persons with parental responsibility to be able to consent to the disclosure of family safety risk screening information, as those persons with parental responsibility may be the other party/parties in the proceedings, or may not be involved in the proceedings at all.

Family safety risk screening information may be disclosed to other family safety risk screening persons

59.                New subsection 10U(5) would make it clear that family safety risk screening information may be shared between family safety risk screening persons for the purposes of their duties under new Part IIA.

Family safety risk screening information may be disclosed if necessary to protect a child, person, or property, or to report the commission of an offence

60.                 New subsection 10U(6) would authorise a family safety risk screening person to disclose family safety risk screening information if they reasonably believe that it 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 a person

·          report the commission, or prevent the likely commission, of an offence involving violence or a threat of violence to a person

·          prevent or lessen a serious and imminent threat to the property of a person

·          report the commission, or prevent the likely commission, of an offence involving intentional damage to the property of a person or the threat of damage to the property of a person, or

·          assist an independent children’s lawyer to represent a child’s interests properly.

61.                These exceptions capture situations where disclosure of family safety risk screening information is necessary to protect children, adults or property, with the benefits of disclosure outweighing the need for confidentiality. New subsection 10U(6) reflects the exceptions to confidentiality for family counsellors in existing subsection 10D(4).

Certain family safety risk screening information may be disclosed for research relating to families

62.                New subsection 10U(7) would provide that a family safety risk screening person may disclose family safety risk screening information in order to provide information for research relevant to families. New subsection 10U(7) makes it clear that this does not include personal information within the meaning of section 6 of the Privacy Act 1988 . Section 6 of the Privacy Act defines personal information as ‘information or an opinion about an identified individual, or an individual who is reasonably identifiable’. This means that only de-identified information can be disclosed, and only for the purposes of research relating to families.

63.                New subsection 10U(7) reflects existing subsection 10D(5) relating to family counsellors.

Authorised disclosure does not affect the admissibility of family safety risk screening information

64.                New subsection 10U(8) makes it clear that even if subsection 10U(2), (3), (4), (5), (6) or (7) requires or authorises disclosure of family safety risk screening information, that information may still be inadmissible under new section 10V.

New section 10V - Admissibility of family safety risk screening information etc.

Family safety risk screening information is not admissible

65.                New subsection 10V(1) would provide that family safety risk screening information is not admissible in any court, whether or not exercising federal jurisdiction, or in any proceedings before a person authorised (by law or by the consent of the parties) to hear evidence. This means that family safety risk screening information is inadmissible in all types of legal proceedings, including family law proceedings, family violence order proceedings, child protection proceedings, administrative tribunal proceedings, and in processes such as arbitration.

66.                This subsection is similar to existing subsection 10E(1) relating to family counselling, but applies more broadly to all family safety risk screening information (not just to admissions or disclosures of abuse).

67.                It is appropriate that family safety risk screening information be inadmissible, as it is not intended to have the same purpose as, or replace, evidence in proceedings. This is because family safety risk screening information is based on subjective information that parties provide at a single point in time. Evidence in family law proceedings is provided through multiple other means, such as affidavits, notices of risk, subpoenaed material admitted into evidence, and expert reports.

Exception for family safety risk screening information indicating child abuse

68.                New subsection 10V(2) would provide that new subsection 10V(1) does not apply to family safety risk screening information indicating that a child under 18 has been abused, or is at risk of abuse, unless the court’s opinion is that there is sufficient evidence of the information available from other sources. ‘Abuse’ in relation to a child is defined in existing subsection 4(1), and includes assault, sexual abuse, serious psychological harm from family violence, and serious neglect.

69.                New subsection 10V(2) is intended to ensure that the protection of a child from abuse is prioritised over the interests of a party. This subsection is consistent with the exception relating to family counselling in existing subsection 10E(2), but applies more broadly to all family safety risk screening information (not just to admissions or disclosures of abuse).

70.                New subsections 10U(2) and 10U(6) would allow a family safety risk screening person to disclose family safety risk screening information in order to comply with a law and/or to protect a child from harm. For example, a family safety risk screening person may make a disclosure to a state or territory child protection agency in order to comply with a mandatory reporting obligation and/or to protect a child from harm. New subsection 10V(2) would ensure that the family safety risk screening information that was disclosed was admissible in subsequent child protection proceedings, if necessary.

Evidence of things said, or admissions made, in company of professionals

71.                As part of the family safety risk screening process, a family safety risk screening person may refer a party to a medical or other professional service to assist the party with issues identified through risk screening. New subsection 10V(3) would provide that evidence of anything said, or any admissions made, by or in the company of the professional to whom the party was referred is not admissible in any court (whether or not exercising federal jurisdiction) or in any proceedings before a person authorised (by law or by the consent of the parties) to hear evidence.

72.                This means that this evidence is inadmissible in all types of legal proceedings, including family law proceedings, family violence order proceedings, child protection proceedings, administrative tribunal proceedings, and in processes such as arbitration.

73.                New subsection 10V(3) is intended to ensure that parties are not discouraged from accessing professional help, and that they engage with professionals in an honest and productive manner, without fear that the information they provide will be used against them in family law (or other) proceedings.

74.                New subsection 10V(3) is appropriate as, in the context of family law parenting proceedings, assisting a party to address family violence, mental health, substance misuse, and/or other issues, may have direct benefits for that party’s child.

75.                New subsection 10V(3) is consistent with existing subsection 10E(1) relating to family counselling and referrals from family counselling.

Exception for things said or admissions made indicating abuse of a child

76.                New subsection 10V(4) would provide that new subsection 10V(3) does not apply to things said or admissions made by a referred party indicating that a child under 18 has been abused, or is at risk of abuse, unless the court’s opinion is that there is sufficient evidence of the information available from other sources. ‘Abuse’ in relation to a child is defined in existing subsection 4(1).

77.                As with new subsection 10V(2), new subsection 10V(4) is intended to ensure that the protection of a child from abuse is prioritised over the interests of a party. This subsection is consistent with the exception relating to family counselling in existing subsection 10E(2).

Professional to be informed of the effect of section 10V

78.                New subsection 10V(5) would provide that a family safety risk screening person must inform a person to whom they refer a party for medical or other professional services of the effect of new section 10V.

79.                This subsection means that the family safety risk screening person must inform the professional that anything the professional or the party says, or any admission the party makes, is not admissible in any court or legal proceeding. This is to ensure that the professional is aware of the status of this information, for example should they be issued with a subpoena to produce documents and/or to give evidence.

80.                New subsection 10V(5) reflects existing subsection 10E(4) relating to family counselling.

New section 10W - Immunity of family safety risk screening persons

81.                New section 10W would provide that family safety risk screening persons have the same protection and immunity as a Judge of the Family Court.

82.                This is the same immunity and protection provided to family consultants in existing section 11D.

83.                At common law, Judges have an immunity from being compelled to give evidence in relation to the performance of their judicial functions, and from being compelled to disclose any aspect of their judicial decision-making process. Judges also have an immunity and protection from civil or criminal liability for acts done in the exercise of their judicial function or capacity, subject to certain limitations (for example, judicial corruption). New section 10W would ensure that family safety risk screening persons have this same immunity when performing non-judicial tasks, such as making referrals and triaging matters into pathways based on risk screening information. This is intended to promote effective decision-making, by ensuring that family safety risk screening persons are able to act independently and objectively, without fear of liability.

Item 3 - Application provisions

Application of confidentiality provisions

84.                Subsection (1) would provide that new section 10U applies to the disclosure of family safety risk screening information on or after commencement of the Act, and applies to family safety risk screening information that was obtained, generated or created before, on or after that commencement.

85.                This means that, from the date the Act commences, a family safety risk screening person must not disclose family safety risk screening information, including family safety risk screening information that was obtained, generated or created before the Act commenced. This is intended to ensure that any family safety risk screening information resulting from a family safety risk screening process that began prior to the Act’s commencement would be protected from the date the Act commences.

Application of admissibility provisions

86.                Subsection (2) would provide that new subsection 10V(1) applies on or after the commencement of the Act to the admissibility of family safety risk screening information. T his means that new subsection 10V(1) does not operate retrospectively, and does not affect evidence that has already been admitted.

87.                Subsection (2) would also provide that new subsection 10V(1) applies to family safety risk screening information that was obtained, generated or created before, on or after the Act commenced . T his means that new subsection 10V(1) applies to all family safety risk screening information, including information that came into existence before the Act commenced. This is intended to ensure that any family safety risk screening information resulting from a family safety risk screening process that began prior to the Act’s commencement would be protected from the date the Act commences.

88.                Subsection (2) would make it clear that new subsection 10V(1) applies in proceedings that were pending immediately before, or instituted on or after, commencement . T his means that new subsection 10V(1) applies to all proceedings currently on foot.

89.                Subsection (3) would provide that new subsection 10V(3) applies on or after the commencement of the Act to the admissibility of a thing said or an admission made. T his means that new subsection 10V(3) does not operate retrospectively, and does not affect evidence that has already been admitted.

90.                Subsection (3) would also provide that new subsection 10V(3) applies to things said or admissions made before, on or after the Act commenced. This means that new subsection 10V(3) applies to all things said or admissions made, including those things said or admitted before the Act commenced. This is intended to ensure that the protection extends to things said or admissions made by a party to a professional, where that party was referred to the professional by a family safety risk screening person prior to the Act’s commencement.

91.                Subsection (3) would make it clear that new subsection 10V(3) applies in proceedings that were pending immediately before, or instituted on or after, commencement . T his means that new subsection 10V(3) applies to all proceedings currently on foot.

Application of immunity provision

92.                New subsection (4) would provide that new section 10W applies in relation to a family safety risk screening person’s functions on or after commencement of the Act. This means that new section 10W does not apply retrospectively, and only applies to actions, decisions or functions undertaken by a family safety risk screening person on or after commencement of the Act.

Part 2 - Contingent amendments

93.                Part 2 outlines amendments that are contingent on the commencement of the Federal Circuit and Family Court of Australia Act 2020. The amendments in Part 2 would not commence if the Federal Circuit and Family Court of Australia Act does not commence.