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Information sharing

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 despite the merger of the Courts.

Information-sharing agreements exist between the courts and child welfare and other agencies in Australian state and territory jurisdictions. The terms of these agreements and related protocols vary considerably and are reviewed from time to time to improve procedures.

An important resource in the courts is the National Enquiry Centre (NEC) established in 2000. The NEC is the entry point for all telephone and email enquiries; staff provide users with information and procedural advice, forms and publications and referrals to other services.

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 FCFCOA 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.

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. Section 69ZW FLA and Section 202K FCA empower the court to make an order in child-related proceedings requiring a state or territory agency to provide the court with specified documents or information about the engagement of a party or child with that agency. Information in this context may include information that is not in the form of a document but is capable of being attested to by an individual. The court is not permitted to disclose the identity of a person who has made a notification to an agency unless the person consents 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 FCFCOA Rules, which include subpoena to produce, to give evidence, and to both produce and give evidence.

Although Section 69ZW 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 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 & 10H FLA and Sections 49 & 53 FCA 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. As a consequence, these gaps may impede timely responses to family violence and have a negative impact on victims.