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The former Family Court of Australia (FCA) and former Federal Circuit Court of Australia (FCCA) (collectively called here “the former courts”) made a commitment to provide timely, reliable and relevant information to state and territory courts, police and child protection agencies; and to continue to explore opportunities to work with state and territory courts dealing with family violence and child protection matters (and others with a proper interest in such matters, including police and child protection agencies) to ensure that those courts and agencies have reliable and timely access to relevant information about existing or pending family law orders. (See also 10.1.3 Intersection of legal systems). This commitment continues with the merger of the Courts.
Following an Australian Law Reform Commission inquiry in 2019, which recommended improved national information sharing, the National Systemic Framework for Information Sharing Between Family Law and Family Violence with Child Protection Systems (‘National Strategic Framework’) was endorsed by the then Meeting of Attorneys-General in 2021. The National Strategic Framework aims to create ‘nationally consistent, two-way information sharing between the federal family law courts and state and territory courts, child protection, policing and firearms agencies’ to aid in effective decision-making in matters where individuals are subjected to (or at risk of being subjected to) family violence, child abuse, or neglect.
Link to the National Strategic Framework here.
Parts of the National Strategic Framework have been operationalised by the Family Law Amendment (Information Sharing) Act 2023 (‘Information Sharing Amendment’), which has introduced changes to improve how entities exchange information relating to family violence, child abuse, and neglect. The Information Sharing Amendment has repealed section 69ZW Family Law Act and introduced the new broader Part VII Division 8 Subdivision DA Family Law Act which empowers the family law courts to make two different types of orders requiring ‘information sharing agencies’ to provide particulars, documents or information in their possession and control relating to family violence, abuse and risk in child-related proceedings. The amendments ensure that family law court decision-makers have timely access to relevant information at all stages of proceedings.
The National Strategic Framework builds on the success of the Commonwealth-implemented Co-Location Program, which has co-located State and Territory child protection and police officials in Family Law Court registries across Australia since early 2020. Co-locating State and Territory officials within family law court registries has improved inter-jurisdictional understanding and cooperation, leading to better information sharing practices between the family law, family violence and child protection systems.
Furthermore, within the broader commitment to provide information, the Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA) provide various mechanisms by which the court can obtain information, including statutory notification requirements in particular circumstances. These are explained in the following paragraphs.
In family law proceedings where a party, an Independent Children’s Lawyer or any other interested person alleges that a child has been or is at risk of being abused, Section 67Z FLA and Section 159 FCA require that person to file a notice of child abuse with the court, and the court registry to notify the relevant child welfare authority as soon as practicable. Where in the course of performing duties or exercising powers any court personnel, family consultant or counsellor, family dispute resolution practitioner, arbitrator or lawyer has reasonable grounds for suspecting a child has been or is at risk of being abused, ill-treated, or psychologically harmed, Section 67ZA FLA and Section 160 FCA require that person to notify the relevant child welfare authority soon as practicable. In any proceedings affecting the welfare of a child, the presiding court may request the intervention of a child welfare officer in the proceedings and the officer may act on that request (Section 91B FLA and Section 207 FCA). Even where the officer elects not to intervene, the court’s request has the effect of bringing relevant information to the attention of the child welfare authority.
Section 67ZBA FLA and Section 162A FCA provide that where a party to child-related proceedings, or any other interested person as defined, alleges that there has been, or there is a risk of, family violence by one of the parties to the proceedings, that person must file a statutory notice of risk with the court.
The FCFCA requires the filing of a Notice of child abuse, family violence or risk (Notice of Risk) to be filed with any Initiating Application, Application for Consent Orders or Response to Initiating Application. The Notice of Risk (in the form prescribed by Section 67Z FLA) requires answers to specific questions directed at eliciting information about child abuse, family violence and a range of other risks. If the notice alleges child abuse or a risk of child abuse (or family violence of such a kind as would satisfy the statutory definition of child abuse), the court registry must notify the relevant state or territory child welfare authority. The child welfare authority may provide a response containing information held by the authority about the child the subject of the proceedings. Note ‘prescribed welfare authority’ is defined in Section 4 FLA.
Where a Notice of risk is filed, Section 67ZBB FLA and Section 162B FCA require the court to make the necessary interim orders and to act as expeditiously as possible to enable evidence of the allegations to be obtained, to protect the children and any party to the proceedings, and to deal with the issues raised by the allegations. Part VII Division 8 Subdivision DA FLA empowers the court to make an order requiring a state or territory child protection, policing or firearms agency to provide the court with specified particulars, documents or information in their possession and control relating to family violence, abuse and neglect concerns identified within child-related proceedings. The court is not permitted to disclose the identity of a person who has made a notification to an agency unless the person consents, the person is a party to proceedings, or disclosure is critically important to the proceedings and failure to do so would prejudice the proper administration of justice. These mechanisms are available in conjunction with the court’s powers to subpoena set out in Part 6.5 of the FCFCA Rules, which include subpoena to produce, to give evidence, and to both produce and give evidence.
Although Part VII Division 8 Subdivision DA FLA and section 202K FCA impose additional responsibilities on the police, child welfare authority and other agencies, the purpose of sharing information is to ensure the protection of children and the fulfilment of the court’s obligations. The information-sharing provisions, including the recent amendments to information sharing practices, allow relevant evidence to be gathered at an early stage and a judicial determination to be made as to how the matter should proceed and whether any expert evidence is required. The experiences of families affected by family violence and child safety concerns (including parents who are issued a 60I/66H Certificate) progressing from counselling, family dispute resolution and other services and agencies to the courts reinforces the need for continuing consideration of information sharing between multiple systems. Depending on the extent of engagement underlying the issuing of a Certificate, a significant amount of intake and assessment activity may have occurred before the parent starts to engage with the court system, yet this activity may not be visible in the court beyond the existence of the Certificate. Sections 10D & 10HFLA and Sections 49 & 53FCA permit the disclosure of communications made in the course of family counselling or family dispute resolution in certain circumstances, including where the family counsellor or family dispute resolution practitioner reasonably believes the disclosure is necessary to comply with the law, to protect a child from the risk of harm, or to assist an Independent Children’s Lawyer to properly represent a child’s interests.
More broadly it is acknowledged that interagency collaboration can better meet the needs of families that are vulnerable and at risk. Research has found that gaps in protection may reflect gaps in the flow of information, in particular between the family law system, the family violence system and the child welfare system.
The Co-Location Program which has co-located State and Territory child protection and other officials in Family Law Court Registries across Australia, aims to enhance information sharing and collaboration between federal family law and state and territory child protection and family violence systems.
The Department of Social Services’ National Plan to Reduce Violence Against Women and their Children website describes the intended outcomes of this program as:
•
a more coordinated response to family safety issues (demonstrated in part by the sharing of data relating to information or intervention requests in matters where child abuse is suspected or alleged)
•
judicial officers being able to make decisions with full knowledge of prior involvement by child protection and law enforcement agencies
•
strengthened judicial decision-making, with family safety risks identified and addressed earlier in family law proceedings
•
improved inter-jurisdictional understanding and cooperation, leading to better information sharing practices
The former Family Court of Australia (FCA) and former Federal Circuit Court of Australia (FCCA) (collectively called here “the former courts”) made a commitment to provide timely, reliable and relevant information to state and territory courts, police and child protection agencies; and to continue to explore opportunities to work with state and territory courts dealing with family violence and child protection matters (and others with a proper interest in such matters, including police and child protection agencies) to ensure that those courts and agencies have reliable and timely access to relevant information about existing or pending family law orders. (See also 10.1.3 Intersection of legal systems). This commitment continues with the merger of the Courts.
Following an Australian Law Reform Commission inquiry in 2019, which recommended improved national information sharing, the National Systemic Framework for Information Sharing Between Family Law and Family Violence with Child Protection Systems (‘National Strategic Framework’) was endorsed by the then Meeting of Attorneys-General in 2021. The National Strategic Framework aims to create ‘nationally consistent, two-way information sharing between the federal family law courts and state and territory courts, child protection, policing and firearms agencies’ to aid in effective decision-making in matters where individuals are subjected to (or at risk of being subjected to) family violence, child abuse, or neglect.
Link to the National Strategic Framework here.
Parts of the National Strategic Framework have been operationalised by the Family Law Amendment (Information Sharing) Act 2023 (‘Information Sharing Amendment’), which has introduced changes to improve how entities exchange information relating to family violence, child abuse, and neglect. The Information Sharing Amendment has repealed section 69ZW Family Law Act and introduced the new broader Part VII Division 8 Subdivision DA Family Law Act which empowers the family law courts to make two different types of orders requiring ‘information sharing agencies’ to provide particulars, documents or information in their possession and control relating to family violence, abuse and risk in child-related proceedings. The amendments ensure that family law court decision-makers have timely access to relevant information at all stages of proceedings.
The National Strategic Framework builds on the success of the Commonwealth-implemented Co-Location Program, which has co-located State and Territory child protection and police officials in Family Law Court registries across Australia since early 2020. Co-locating State and Territory officials within family law court registries has improved inter-jurisdictional understanding and cooperation, leading to better information sharing practices between the family law, family violence and child protection systems.
Furthermore, within the broader commitment to provide information, the Family Law Act 1975 (Cth) and the Family Court Act 1997 (WA) provide various mechanisms by which the court can obtain information, including statutory notification requirements in particular circumstances. These are explained in the following paragraphs.
In family law proceedings where a party, an Independent Children’s Lawyer or any other interested person alleges that a child has been or is at risk of being abused, Section 67Z FLA and Section 159 FCA require that person to file a notice of child abuse with the court, and the court registry to notify the relevant child welfare authority as soon as practicable. Where in the course of performing duties or exercising powers any court personnel, family consultant or counsellor, family dispute resolution practitioner, arbitrator or lawyer has reasonable grounds for suspecting a child has been or is at risk of being abused, ill-treated, or psychologically harmed, Section 67ZA FLA and Section 160 FCA require that person to notify the relevant child welfare authority soon as practicable. In any proceedings affecting the welfare of a child, the presiding court may request the intervention of a child welfare officer in the proceedings and the officer may act on that request (Section 91B FLA and Section 207 FCA). Even where the officer elects not to intervene, the court’s request has the effect of bringing relevant information to the attention of the child welfare authority.
Section 67ZBA FLA and Section 162A FCA provide that where a party to child-related proceedings, or any other interested person as defined, alleges that there has been, or there is a risk of, family violence by one of the parties to the proceedings, that person must file a statutory notice of risk with the court.
The FCFCA requires the filing of a Notice of child abuse, family violence or risk (Notice of Risk) to be filed with any Initiating Application, Application for Consent Orders or Response to Initiating Application. The Notice of Risk (in the form prescribed by Section 67Z FLA) requires answers to specific questions directed at eliciting information about child abuse, family violence and a range of other risks. If the notice alleges child abuse or a risk of child abuse (or family violence of such a kind as would satisfy the statutory definition of child abuse), the court registry must notify the relevant state or territory child welfare authority. The child welfare authority may provide a response containing information held by the authority about the child the subject of the proceedings. Note ‘prescribed welfare authority’ is defined in Section 4 FLA.
Where a Notice of risk is filed, Section 67ZBB FLA and Section 162B FCA require the court to make the necessary interim orders and to act as expeditiously as possible to enable evidence of the allegations to be obtained, to protect the children and any party to the proceedings, and to deal with the issues raised by the allegations. Part VII Division 8 Subdivision DA FLA empowers the court to make an order requiring a state or territory child protection, policing or firearms agency to provide the court with specified particulars, documents or information in their possession and control relating to family violence, abuse and neglect concerns identified within child-related proceedings. The court is not permitted to disclose the identity of a person who has made a notification to an agency unless the person consents, the person is a party to proceedings, or disclosure is critically important to the proceedings and failure to do so would prejudice the proper administration of justice. These mechanisms are available in conjunction with the court’s powers to subpoena set out in Part 6.5 of the FCFCA Rules, which include subpoena to produce, to give evidence, and to both produce and give evidence.
Although Part VII Division 8 Subdivision DA FLA and section 202K FCA impose additional responsibilities on the police, child welfare authority and other agencies, the purpose of sharing information is to ensure the protection of children and the fulfilment of the court’s obligations. The information-sharing provisions, including the recent amendments to information sharing practices, allow relevant evidence to be gathered at an early stage and a judicial determination to be made as to how the matter should proceed and whether any expert evidence is required. The experiences of families affected by family violence and child safety concerns (including parents who are issued a 60I/66H Certificate) progressing from counselling, family dispute resolution and other services and agencies to the courts reinforces the need for continuing consideration of information sharing between multiple systems. Depending on the extent of engagement underlying the issuing of a Certificate, a significant amount of intake and assessment activity may have occurred before the parent starts to engage with the court system, yet this activity may not be visible in the court beyond the existence of the Certificate. Sections 10D & 10HFLA and Sections 49 & 53FCA permit the disclosure of communications made in the course of family counselling or family dispute resolution in certain circumstances, including where the family counsellor or family dispute resolution practitioner reasonably believes the disclosure is necessary to comply with the law, to protect a child from the risk of harm, or to assist an Independent Children’s Lawyer to properly represent a child’s interests.
More broadly it is acknowledged that interagency collaboration can better meet the needs of families that are vulnerable and at risk. Research has found that gaps in protection may reflect gaps in the flow of information, in particular between the family law system, the family violence system and the child welfare system.
The Co-Location Program which has co-located State and Territory child protection and other officials in Family Law Court Registries across Australia, aims to enhance information sharing and collaboration between federal family law and state and territory child protection and family violence systems.
The Department of Social Services’ National Plan to Reduce Violence Against Women and their Children website describes the intended outcomes of this program as:
•
a more coordinated response to family safety issues (demonstrated in part by the sharing of data relating to information or intervention requests in matters where child abuse is suspected or alleged)
•
judicial officers being able to make decisions with full knowledge of prior involvement by child protection and law enforcement agencies
•
strengthened judicial decision-making, with family safety risks identified and addressed earlier in family law proceedings
•
improved inter-jurisdictional understanding and cooperation, leading to better information sharing practices