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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
FAMILY LAW AMENDMENT (INFORMATION SHARING) BILL 2023
EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
FAMILY LAW AMENDMENT (INFORMATION SHARING) BILL 2023
GENERAL OUTLINE
1. The Family Law Amendment (Information Sharing) Bill (the Bill) would amend the
Family Law Act 1975 (Cth) (the Act) to operationalise key aspects of the National Strategic
Framework for Information Sharing between the Family Law and Family Violence and
Child Protection Systems (National Framework). The Bill will establish an enhanced court-
led information sharing framework for information relating to family violence, child abuse
and neglect risks in parenting proceedings before the Federal Circuit and Family Court of
Australia, and the Family Court of Western Australia (family law courts).
2. The overarching objective of the National Framework, and consequently this Bill, is
to promote the safety and wellbeing of children and adults affected by family violence, child
abuse and neglect, and to support informed and appropriate decision-making in
circumstances where there may be risk to family safety. Families at risk of, or affected by,
abuse, neglect or family violence may come into contact with State and Territory police,
firearms and child protection agencies over a period of time. When families separate through
the family court system, it is crucial for family law decision-makers to have timely access to
information that will support informed decisions which consider abuse, neglect and family
violence risks in a holistic manner across these systems.
3. This Bill would build upon and enhance proactive court-initiated information
gathering, codify existing informal information sharing processes, and improve the
efficiency and effectiveness of information sharing between the family law, family violence
and child protection systems. The Bill introduces a new subdivision within Part VII of the
Act to implement an enhanced information sharing scheme as envisaged by the National
Framework. This new information sharing scheme:
a. repeals current section 69ZW and introduces two different types of information
sharing orders (orders for particulars of documents and orders for documents or
information)
b. broadens the scope of information able to be sought through the new information
sharing orders in recognition of the complex nature of family violence, child abuse
and neglect risk
c. expressly outlines legal exclusions to information sharing, which will be
supported by information sharing safeguards to be prescribed by amendments to
the Family Law Regulations 1984 (the Regulations), and
d. introduces a restriction on the issue of subpoenas without leave of the court to
reduce duplication of information requests and information before the court.
4. While the National Framework concerns the two-way sharing of information between
the federal family law system, and the State and Territory family violence and child
protection systems, this Bill does not contemplate information sharing from the family law
courts to State and Territory agencies. Such information sharing will be dealt with through
established avenues, including the Federal Circuit and Family Court of Australia (Family
Law) Rules 2021 (the Rules).
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5. The Bill, along with the National Framework, responds to a number of
recommendations to improve information sharing between State and Territory child
protection and family violence systems, and the federal family law system. Specifically, the
Bill responds to:
a. Recommendation 14 of the Joint Select Committee on Australia's Family Law
System Second Interim Report (2021)
b. Recommendation 2 of the Australian Law Reform Commission's Family Law for
the Future - An Inquiry into the Family Law System (2019)
c. Recommendation 21 of the House of Representatives Standing Committee on
Social Policy and Legal Affairs' A Better Family Law System (2017), and
d. Recommendation 6 of the Family Law Council's Families with Complex Needs
and the Intersection of Family Law and Child Protection (2016).
6. The Bill would be supported by amendments to the Regulations, to prescribe:
a. participating State and Territory child protection, policing and firearms agencies
as information sharing agencies, and
b. additional information sharing safeguards which must be regarded by the family
law courts and information sharing agencies in handling and sharing sensitive
personal information.
7. This Bill, and the National Framework, have been developed through close and
lengthy consultations with affected State and Territory agencies and courts, the federal
family law courts, peak national non-government organisations and legal professional
bodies. A targeted exposure draft of the Bill was provided to these stakeholders on
13 September 2022, with the consultation closing on 19 October 2022.
Background
8. A significant number of matters before the family law courts involve allegations of
family violence, child abuse and neglect. Court data shows that family violence was alleged
in 80% of matters filed in the Federal Circuit and Family Court of Australia during the 2021-
22 financial year, with 66% of matters involving disclosures of four or more risk factors
(such as family violence, child abuse, mental health issues or drug, alcohol or substance
abuse issues putting a child at risk).1 Importantly, 76% of matters were referred to State and
Territory welfare agencies as a result of alleged or identified risks.
9. In considering what is in the best interests of a child in family law proceedings, the
family law courts are already required to consider family violence and child abuse risks, and
are empowered to seek information to support the fulfilment of this obligation. This requires
the family law courts to rely on information held by State and Territory agencies responsible
for the investigation and management of family violence and child safety risk. Incomplete or
inconsistent information sharing practices between the intersecting federal family law and
1Federal Circuit and Family Court of Australia (Division 1) and Federal Circuit and Family Court of
Australia (Division 2) Annual Reports FY2021-2022, p.15.
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State/Territory family violence and child protection systems, as previously examined by the
inquiries noted above, leads to increased risk for children and adults accessing these systems.
10. Existing formal processes for information sharing within the family law system are
limited to party-initiated subpoena processes, and orders under section 69ZW of the Act.
These processes are then currently supported by 22 co-located State and Territory child
protection and policing officials embedded in select family law registries around Australia,
who work to provide proactive information sharing under State and Territory legislative
frameworks, and in response to requests for information from court staff.
11. The current section 69ZW is limited in scope, focussing on notifications or
investigations of child abuse or family violence affecting a child to whom proceedings relate.
As the understanding of the prevalence and impacts of family violence, child abuse and
neglect has grown, this limited scope has proven insufficient in providing access to all
relevant information to inform decision-making. This has increasingly led to a reliance on
inconsistent State and Territory information sharing practices, and party-initiated subpoena
processes, which can be expensive, complex, lengthy and resource-intensive for the courts,
agencies, and parties, particularly where self-represented.
Outline of the Bill
New framework for court-initiated orders for information in child-related proceedings
12. This Bill would repeal section 69ZW of the Act, and insert a new Subdivision DA of
Division 8 of Part VII of the Act, which establishes a more comprehensive court-initiated
information sharing framework, underscoring the best interests of the child, including
protection of a child from harm, as the paramount consideration within family law
proceedings. In doing so, the Bill would empower the family law courts to make a range of
orders, to seek particulars of information in the possession and control of information
sharing agencies, as well as the production of documents or information held.
13. The introduction of two different types of information sharing orders is designed to
increase the family law courts' ability to most efficiently target requests for information at
any stage of the proceedings. This in turn would ensure the court is abreast of relevant
information to support not only the making of appropriate interim and final orders, but also
the identification of risk and appropriate case management of matters before it.
14. The range of orders would cover both actual and potential family violence, child
abuse and neglect risks impacting on a child to whom proceedings relate, as well as the risk
of parties to child-related proceedings experiencing or engaging in family violence.
15. To reduce the burden on information sharing agencies who otherwise may be subject
to multiple orders, the Bill would also include a provision restricting the issue of subpoenas
without leave of the court in matters where the court has already issued an order for the
production of documents or information. This is consistent with existing restrictions on
subpoenas in family law matters in the Rules, and ensures there remains an avenue through
which litigants can subpoena information not already before the court.
16. Though not contained within the Bill, the types of agencies, or parts of agencies,
intended to be prescribed in the Regulations are those with investigative powers and
responsibilities in relation to family violence and child protection, such as State and
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Territory police and child protection authorities, as well as those who may hold pertinent
information for the assessment and management of family violence and safety risk, such as
firearms authorities.
17. State and Territory courts will not be prescribed as information sharing agencies by
the Regulations.
Admission of information obtained into evidence
18. The Bill would require the family law courts to admit into evidence any particulars,
documents or information provided in response to the new orders on which they intend to
rely upon when determining a matter. An exemption to this requirement would apply when
such information is used for the case management of matters, rather than their determination.
This is consistent with protections for family safety risk screening information under section
10U of the Act.
19. In admitting information into evidence, the Bill would require the court not to
disclose, except in limited circumstances, the identity of a person who made a notification of
suspected child abuse or family violence to an information sharing agency. This balances the
public policy position that the identity of a notifier should be protected, against the principles
of procedural fairness and acknowledgement that the administration of justice and protection
of children and parties may require disclosure.
Provision for inclusion of safeguards to protect the sharing of sensitive information
20. The family law courts and information sharing agencies would be required to have
regard to information sharing safeguards prescribed by the Regulations on handling, storing,
accessing or sharing information under this Bill.
21. The types of information sharing safeguards contemplated to support the Bill have
been subject to targeted consultation and informed by a Privacy Impact Assessment
commissioned during the development of the National Framework. The safeguards are
intended to ensure information shared is collected, used, disclosed, accessed and stored in an
appropriate manner. The safeguards to be prescribed by the Regulations may include items
to ensure:
a. information is only requested, ordered, and shared to the extent necessary to
identify, assess, manage and respond to family violence, child abuse and neglect
risk;
b. information sharing is conducted in good faith, avoiding conflicts of interest and
with reasonable care to the safety of staff, parties to proceedings and relevant third
parties;
c. information is sent and received in a secure manner, which limits further
disclosure;
d. reasonable steps are taken to ensure that parties who may pose, or are alleged to
pose, a family safety or child abuse risk, cannot access sensitive information that
may prejudice the safety of another person, whilst ensuring access to natural
justice, and;
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e. if discovered that information recorded and shared is incorrect, best efforts are
made to correct the information shared, and relevant records are updated.
22. These information sharing safeguards are intended to provide a minimum standard of
safeguards for the protection of sensitive information when it is used, shared and accessed. It
is expected that these safeguards will complement existing practices within the courts and
information sharing agencies, providing greater assurances and transparency for families and
individuals about how this information is being shared and used.
23. Including these additional safeguards within the Regulations allows greater capacity
to ensure the safeguards remain up to date with current best practice. It also ensures the
safeguards are not overly prescriptive, recognising differences in jurisdictional systems and
practices.
Statutory review
24. To ensure the proposed amendments establish an enhanced information sharing
framework that is fit-for-purpose and meets the objectives of the National Framework, the
Bill provides that a review of the operation of amendments must commence no later than
12 months after their commencement.
FINANCIAL IMPACT
25. Funding for the family law courts and State and Territory information sharing
agencies to support enhanced information sharing under the National Framework, and
through the co-location of State and Territory police and child protection officials in family
law court registries, was provided as part of the 2019-20 and 2021-22 Budgets, and the
2021-22 MYEFO. Current funding arrangements will terminate 30 June 2025.
26. State and Territory governments are also able to contribute resourcing to support their
child protection, policing and firearms agencies to respond to information orders from the
family law courts.
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STATEMENT OF COMPATIBILITY WITH HUMAN RIGHTS
Prepared in accordance with Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011
Family Law Amendment (Information Sharing) Bill 2023
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. This Bill would make amendments to the Family Law Act 1975 (the Act) to give
effect to the National Strategic Framework for Information Sharing between the Family Law
and Family Violence and Child Protection Systems (National Framework), and improve
information sharing between the family law courts (comprising the Federal Circuit and
Family Court of Australia and the Family Court of Western Australia), and State and
Territory child protection, police and firearms agencies, to promote the safety and wellbeing
of children and families accessing the family law system.
3. In particular, the Bill would amend the Act to:
• introduce new 'information sharing agencies', to be prescribed in the Family Law
Regulations 1984 (the Regulations), which would be State and Territory agencies
or parts of agencies with investigative power, or responsibility for the prevention
of family violence, abuse and neglect matters, or who may hold information
directly relevant to the assessment and mitigation of family violence, neglect or
abuse risk for a child concerned in proceedings, or a party to proceedings
• empower 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 neglect
concerns identified within child-related proceedings
• provide for the admission of particulars, documents or information into evidence,
and limited circumstances in which the identity of a notifier of suspected child
abuse or family violence may be disclosed
• require information sharing agencies and the courts to have regard to information
sharing safeguards, to be prescribed by the Regulations, when handling, storing
and accessing information shared through this Bill
• introduce a requirement for permission of the court to be sought by parties seeking
to issue a subpoena in limited circumstances, and
• provide for a statutory review of the provisions included in this Bill.
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Human rights implications
4. The Bill engages the following human rights:
• The right to a fair trial and a fair hearing: Article 14(1) of the International
Covenant on Civil and Political Rights (ICCPR)
• The right to privacy: Article 17 of the ICCPR
• Protection of children, including on dissolution of a marriage: Articles 23(4) and
24(1) of the ICCPR
• Child's rights are guaranteed and must be available to all children without
discrimination of any kind: Article 2 of the Convention on the Rights of the Child
(CRC)
• Child's best interests must be the primary consideration of the family courts, State
and Territory courts, public welfare institutions and administrative authorities or
legislative bodies: Article 3(1) of the CRC
• Protection and care of children for his or her well-being to this end, shall take all
appropriate legislative and administrative measures: Article 3(2) of the CRC
• Protection from a child being separated from his or her parents against their will,
unless it is in the best interests of the child and necessary to protect from abuse or
neglect, or where parents are living separately: Article 9(1) of the CRC
• Child's right to maintain personal relations and direct contact with parents, if
separated from one or both, unless contrary to the child's best interests: Article
9(3) of the CRC
• Protection of children from physical or mental violence, injury or abuse, neglect
or negligent treatment, maltreatment or exploitation, sexual abuse and
exploitation: Articles 19(1) and 34 of the CRC
• Taking appropriate measures to modify social and cultural patterns of men and
women with a view to eliminating discrimination: Article 5 (a) of the Convention
on the Elimination of All Forms of Discrimination Against Women (CEDAW),
and
• Rights of equality and non-discrimination in matters relating to marriage and
parental responsibility: Article 16(d) of the CEDAW.
Right to a fair trial and a fair hearing: Article 14(1) of the ICCPR
5. The ICCPR provides for fundamental civil and political rights which derive from the
inherent dignity of each person. Article 14(1) of the ICCPR enshrines the right for all
persons to be equal before courts and tribunals. This right recognises that everyone shall be
entitled to a fair and public hearing by a competent, independent and impartial tribunal
established by law.
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6. The amendments in this Bill will promote equality before the courts, the right to a fair
trial and fair hearing by improving the process through which the family law courts obtain
information relevant to family violence, child abuse and/or neglect so that decision-makers
have access to all relevant information.
7. The current processes for information sharing between State and Territory agencies
and the family law courts rely on a combination of narrow court orders relating to
notification and investigations of child abuse and family violence affecting a child in
proceedings, party-initiated subpoenas, and voluntary information sharing under State and
Territory legislative provisions. The result is often voluminous information being provided
to the court, which may be incomplete, duplicative and inconsistent between States and
Territories. Additionally, reliance on party-initiated subpoena processes can be expensive,
complex and difficult for litigants, especially self-represented litigants, to navigate.
8. Amendments to the information sharing framework proposed by this Bill would
enable the family law courts to seek all relevant information from information sharing
agencies in a targeted manner, reducing the burden on parties to ensure all relevant
information is before the courts. Consistent with principles of natural justice and procedural
fairness, the family law courts will be required to admit into evidence any material shared by
information sharing agencies on which they seek to rely in decision-making. An exception to
this is where the material, predominately any particulars shared early in proceedings, is
relied on solely for the purposes of case management, consistent with existing protections for
this purpose.
9. In addition, by introducing an enhanced national framework for information sharing,
this Bill will ensure the family law courts can access the full scope of relevant information
held by information sharing agencies, no matter which State or Territory the proceeding is
filed in.
Right to privacy: Article 17 of the ICCPR
10. Article 17 of the ICCPR provides that everyone has the right to the protection of the
law against interference or attacks to their privacy, family, home or correspondence. It also
provides for a person's right to the protection of the law against such interference or attack.
11. The Bill engages the right to privacy by empowering the family courts to order the
production of particulars, documents and information in child-related proceedings in
connection with a subject child and persons who exposed, or pose a risk of exposing, the
child to harm.
12. Consistent with principles of natural justice and procedural fairness, the family law
courts will be required to admit into evidence any material shared by information sharing
agencies on which they seek to rely in decision-making. An exception to this is where the
material, predominately any particulars shared early in proceedings, is relied on solely for
the purposes of case management, consistent with existing protections for this purpose.
13. At all stages, information sharing agencies and the family law courts will be guided in
the use of information by the information sharing safeguards to be prescribed by the
Regulations. In addition to this, recognising the expertise of information sharing agencies,
the Bill provides for these agencies to advise the courts of any specific concerns held by the
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agency in relation to disclosure of the information shared, which the family law court must
consider when admitting material into evidence.
14. The amendments proposed in this Bill will complement existing section 121 of the
Act, which provides that it is an offence to publish, or otherwise disseminate to the public, or
a section of the public, an account of family law proceedings which identities a part to
proceedings, a person related or associated with proceedings (including a child) or a witness
to proceedings.
15. The Bill and Regulations would introduce additional information sharing safeguards
to ensure that notifiers of suspected child abuse or family violence to child protection
agencies, police and firearm agencies are kept confidential, except in limited circumstances.
This approach is consistent with the existing limited circumstances in which a notifier's
identify can be disclosed within section 69ZW, which acknowledges the importance of
protecting a notifier's identity in most circumstances to ensure there is no disincentive for
concerned individuals to notify relevant authorities of suspected child abuse or family
violence. The inclusion of limited exceptions balances acknowledgement of this overarching
principle against circumstances where non-disclosure a notifier's identity could result in a
failure in the administration of justice, this includes where a party to proceedings is
themselves a relevant notifier.
16. Further, the requirement within the Bill for information sharing agencies and the
family law courts to have regard to information sharing safeguards will ensure that
information is disclosed, collected, used and stored in a safe manner which promotes the
importance of privacy. The types of information sharing safeguards contemplated to support
the Bill have been informed by a Privacy Impact Assessment and developed in consultation
with peak non-government organisations focused on family and domestic violence, women
and children's safety, First Nations communities, and frontline legal assistance. It is
envisaged that the information sharing safeguards to be prescribed in the Regulations will
include items to ensure:
a. information is only requested, ordered, and shared to the extent necessary to
identify, assess, manage and respond to family violence, child abuse and neglect
risk
b. information sharing is conducted in good faith, avoiding conflicts of interest and
with reasonable care to the safety of staff, parties to proceedings and relevant third
parties
c. information is sent and received in a secure manner, which limits further
disclosure
d. reasonable steps are taken to ensure that parties who may pose, or are alleged to
pose, a family safety or child abuse risk cannot access sensitive information that
may prejudice the safety of another person, while ensuring access to natural
justice, and
e. if discovered that information recorded and shared is incorrect, best efforts are
made to correct the information shared, and relevant records are updated.
17. These information sharing safeguards are intended to provide a minimum standard of
safeguards for the protection of sensitive information when it is used, shared and accessed. It
is expected that these safeguards will complement existing practices within the courts and
10
information sharing agencies, providing greater assurances and transparency for families and
individuals about how this information is being shared and used.
18. Including these additional safeguards within the Regulations allows greater capacity
to ensure the safeguards remain up to date with current best practice. It also ensures the
safeguards are not overly prescriptive, recognising differences in jurisdictional systems and
practices.
Protection of children, including on dissolution of a marriage: Articles 23(4) and 24(1) of the
ICCPR
19. Article 23(4) of the ICCPR requires appropriate steps to be taken to ensure the
protection of children on the dissolution of a marriage. Article 24(1) provides for the
protection of all children, without discrimination, by virtue of their status as minors.
20. The family law courts are required, as part of determining what is in a child's best
interests, to consider the need to protect children from physical and psychological harm. The
Bill would enhance the family law courts' ability to order State or Territory information
sharing agencies to provide a more comprehensive range of particulars, documents or
information from the outset of court proceedings and at any time during the conduct of court
proceedings. The particulars, documents or information will support the court to enhance
their assessment of risk and ability to make child-centred decisions for separating families
who have experienced, or who are at risk of experiencing, family violence, child abuse and
neglect. By improving the family law courts' access to this salient information, they will be
better equipped to make well informed decisions in the best interests of the child, including
consideration of their safety.
Children's rights are guaranteed and must be available to all children without discrimination
of any kind, and their best interests are the primary consideration of family courts: Articles 2
and 3 of the CRC
21. The CRC recognises that children should be afforded the necessary protection and
assistance for their full and harmonious development so they can be fully prepared to live an
individual life in society (Article 2).
22. Article 3(1) of the CRC also provides that in all actions concerning children,
including by courts, public or private social welfare institutions, administrative authorities or
legislative bodies, the best interests of the child shall be a primary consideration.
23. Article 3(2) of the CRC further provides that appropriate measures should be
undertaken to ensure a child has the protection and care necessary for their wellbeing,
accounting for the rights and duties of parents or individuals responsible for them.
24. The Bill aligns with the bests interests of the child considerations, as set out in the
Act, and promotes the provision of appropriate orders by the family law courts at all stages
of proceedings, by providing an avenue for the timely production of particulars, documents
and information which would support decision-making.
25. The enhanced information sharing scheme proposed in this Bill would not only ensure
a broader scope of family violence, child abuse and neglect information could be shared, but
also facilitate information sharing through particulars earlier on in proceedings to guide
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immediate case management, triaging and urgent orders. This new order would also allow
the family law courts to be provided with updated information throughout the course of
proceedings, without requiring information sharing agencies to provide onerous amounts of
documents or information, should proceedings be protracted.
Protection from a child being separated from their parents against their will, unless it is in
the best interests of the child and necessary to protect from abuse or neglect, and a child has
a right to maintain personal relations and contact with parents unless contrary to the child's
best interests: Articles 9(1) and 9(3) of the CRC
26. Article 9(1) of the CRC provides that a child should not be separated from their parent
against their will, except where it is determined that this separation is necessary for the best
interests of the child, and their protection from abuse or neglect. Article 9(1) contemplates
that such decisions may be required in cases alleging abuse or neglect of a child, or where
parents are living separately and decisions are required in relation to a child's place of
residence.
27. Article 9(3) provides that a child separated from one or both parents should be able to
maintain personal relations and direct contact with both parents, unless contrary to their best
interests.
28. Family law proceedings under Part VII of the Act often concern the determination of
a place of residence for the child and time to be spent with each parent, where the parents are
living separately following the breakdown of a relationship or dissolution of a marriage. The
Bill would support the family law courts in making these decisions around residence and
time arrangements by ensuring all family safety, child abuse and neglect information is
available from State and Territory information sharing agencies. This is particularly
important for determining arrangements that are in the best interests of a child where there
are allegations of family violence, child abuse or neglect made by a party to proceedings.
Protection of children from physical or mental violence, injury or abuse, neglect or negligent
treatment, maltreatment or exploitation, sexual abuse and exploitation: Articles 19(1) and 34
of the CRC
29. Article 19(1) provides that appropriate legislative and administrative measures be put
in place to protect children from all forms of physical or mental violence, injury or abuse,
neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in
the care of a parent or other person responsible for the care of a child.
30. Article 34 provides for the protection of children from all forms of sexual exploitation
and abuse.
31. The family law courts are required to have regard to the need to protect the right of a
child and to promote their welfare. The Bill would enhance the family law courts' ability to
order State or Territory information sharing agencies to provide a more comprehensive range
of particulars, documents or information from the outset of court proceedings and at any
time during the conduct of court proceedings. The particulars, documents or information will
support the court to enhance their assessment of risk and ability to make child-centred
decisions for separating families who have experienced, or who are at risk of experiencing,
family violence, child abuse and neglect. By improving the family law courts' access to this
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salient information, they will be better equipped to make well informed decisions in the best
interests of the child, including consideration of their safety.
Implement measures to modify social and cultural patterns of men and women with a view
to eliminating discrimination and rights of equality and non-discrimination: Articles 5(a) and
16(d) of the CEDAW
32. Article 5(a) of the CEDAW provides that governments take all appropriate measures
to modify the social and cultural patterns of conduct of men and women, with a view to
achieving the elimination of prejudices based on the idea of inferiority or superiority of
either of the sexes, or stereotyped roles for men and women.
33. Article 16(d) of the CEDAW provides that governments take all appropriate measures
to eliminate discrimination against women in all matters relating to marriage and family
relations and in particular shall ensure that in matters relating to children, the interests of the
children shall be paramount.
34. Discrimination against women includes gender-based violence - that is, violence that
is directed towards a woman because she is a woman, or that affects women
disproportionately. Although family violence is perpetrated by and committed against both
men and women, and the Act is therefore appropriately gender-neutral, the Government
recognises that the majority of those who experience family violence are women and girls.
35. The Government also recognises the connection between the experience of family
violence by women, and the exposure to that violence of children within the family, and
co-occurrence of other forms of abuse, neglect and maltreatment affecting the children.
36. The measures in this Bill seek to better protect victims of family violence, and address
the disproportionate impacts of gender-based violence on women and girls. An overarching
purpose of this Bill is to harmonise information sharing relating to family violence, child
abuse and neglect so that family law courts are better equipped to make decisions about
children, and their families, having regard to all relevant information.
37. The Bill would allow the family law courts to access critical information at an earlier
stage of, and throughout, family law proceedings, enabling the court to make appropriate
case management directions and orders which will support the safety of women and children
experiencing family violence, child abuse and neglect as they navigate the family law
system.
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NOTES ON CLAUSES
Preliminary
Clause 1 - Short title
1. This clause provides for the short title of the Act to be the Family Law Amendment
(Information Sharing) Act 2023.
Clause 2 - Commencement
2. This clause provides for the commencement of each provision in the Bill, as set out in
the table.
3. Item 1 in the table provides that sections 1 and 2 which concern the formal aspects of
the Bill, as well as anything in the Bill not elsewhere covered by the table, will commence on
a day fixed by Proclamation. However, if amendments do not commence by Proclamation
6 months after the day the Act received Royal Assent, then they will commence on the day
after the end of that period.
4. This maximum 6-month delay in commencement is required to allow appropriate
State and Territory legislative amendments, and the development of information sharing
training and guidance material for family law court and information sharing agency staff to
enable the amendments to be implemented.
Clause 3 - Schedules
5. This is a formal clause that enables an 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
Item 1 - Subsection 4(1)
6. Existing subsection 4(1) 'Interpretation' outlines the meaning of terms used in the
Family Law Act 1975 (the Act), and the Federal Circuit and Family Court of Australia
(Family Law) Rules 2021, unless a contrary intention appears.
7. Item 1 would insert new terms relating to orders for information in child-related
proceedings. This is necessary as the expanded information sharing scheme will include
terminology not currently used in the Act.
8. Item 1 would provide that 'information sharing agency' has the meaning given by
new section 67ZBC, 'information sharing safeguards' has the meaning given by new section
67ZBI, and 'protected material' has the meaning given by new section 67ZBF. New sections
67ZBC, 67ZBI and 67ZBF would be inserted by Item 7.
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Item 2 - Section 60CI (heading)
9. Item 2 would remove the words 'prescribed State or Territory agencies' located in the
heading of current section 60CI and replace them with the words 'an information sharing
agency', as defined in this Bill.
Item 3 - Paragraphs 60CI(1)(a) and (2)(a)
10. Item 3 would remove the words 'a prescribed State or Territory agency' wherever
those words occur in current section 60CI and replace them with the words 'an information
sharing agency', as defined in this Bill.
Item 4 - Subsection 60CI(4)
11. Item 4 would repeal subsection 60CI(4) which provides the definition for a
'prescribed State or Territory agency' with reference to current section 69ZW. Section 69ZW
will be repealed by Item 8.
Item 5 - After paragraph 67A(c)
12. Section 67A details what Division 8 of the Act deals with. Item 5 would insert a new
subsection (ca) to include reference to the new Subdivision DA, to be introduced through
Item 7 of this Bill, which relates to 'orders for information relating to child abuse or family
violence'.
Item 6 - Subsection 67ZBB(4)
13. Section 67ZBB of the Act requires the court to take prompt action in relation to
allegations of child abuse or family violence made by interested persons in proceedings. In
part, the section requires the court to consider whether orders should be made under current
section 69ZW to seek relevant information from State and Territory agencies.
14. Item 6 would remove the current reference to section 69ZW and replace it with a
reference to the enhanced information sharing scheme to be introduced by this Bill, being
sections '67ZBD or 67ZBE to obtain particulars, documents or information from information
sharing agencies.'
Item 7 - After Subdivision D of Division 8 of Part VII
15. Item 7 would insert a new Subdivision DA 'Orders for information etc. in
child-related proceedings' of Division 8 of Part VII, which would establish an enhanced,
court-initiated, national information sharing scheme through the introduction of two different
orders: requiring the provision of particulars, and requiring the provision of documents or
information from information sharing agencies in child-related proceedings.
16. New Subdivision DA would contain new sections 67ZBC, 67ZBD, 67ZBE, 67ZBF,
67ZBG, 67ZBH, 67ZBI, 67ZBJ, 67ZBK, which would apply to all proceedings under
Part VII of the Act.
17. New Subdivision DA would also contain new section 67ZBL, which requires a
review of the provisions in this subdivision.
15
18. The intention of new Subdivision DA is to ensure that the family law courts are able
to access all relevant information relating to family violence, child abuse or neglect affecting
a child concerned in proceedings, or a party to proceedings, when considering what is in the
best interests of the child and determining family law parenting matters.
19. For the avoidance of doubt, the following definitions, provided in sections 4 and 4AB
of the Act, continue to apply in new Subdivision DA:
a. 'Family violence' is defined in subsection 4AB(1) as violent, threatening or
other behaviour by a person that coerces or controls a member of the person's
family (the family member), or causes the family member to be fearful.
Subsection 4AB(2) lists several non-exhaustive examples of behaviour that may
constitute family violence, including physical or sexual assault, stalking, verbal
abuse, damage to property, harm to pets, unreasonably denying a person
autonomy or liberty, preventing contact with family or friends and withholding
financial support
b. 'Child abuse' is defined in section 4 and covers an assault, including a sexual
assault, of the child, a person involving the child in a sexual activity, causing the
child to suffer serious psychological harm, including (but not limited to) when
that harm is caused by the child being subjected to, or exposed to, family
violence, or serious neglect of a child, and
c. 'Neglect' is not defined in the Act. However, this Bill adopts the position of the
explanatory memorandum to the Family Law Amendment (Shared Parental
Responsibility) Act 2006, which inserted the term. Consistent with this, the term
'neglect' within the Act should be applied by reference to its meaning or
understanding in accordance with State and Territory child protection legislation.
Further, it is intended to be limited to situations where a lack of reasonable care
is likely to cause unnecessary suffering or injury to the health of the child.
New section 67ZBC - meaning of information sharing agency
20. New section 67ZBC would provide that an 'information sharing agency' is an agency,
or a part of an agency, of a State or Territory, or part of a Commonwealth agency that
provides services on behalf of a State or Territory, prescribed in the Family Law Regulations
1984 (the Regulations). The types of organisations to be prescribed would include those that:
a. have investigative power, or responsibility for the prevention of family violence,
child abuse and neglect matters, or
b. hold information which is directly relevant to the assessment and mitigation of
family violence, neglect or abuse risk for a child concerned in proceedings, or a
party to proceedings.
21. These organisations would include State and Territory child protection, policing and
firearms authorities. For the avoidance of doubt, State and Territory courts will not be
prescribed as information sharing agencies by the Regulations.
22. The scope of agencies, or parts of agencies, contemplated to be captured as
information sharing agencies under new section 67ZBC is substantively similar to those
16
agencies captured as prescribed agencies by current section 60CI(4). Section 60CI(4) will be
repealed by Item 4.
23. The change from 'prescribed State and Territory agencies' to 'information sharing
agencies' is intended to more clearly align prescribed agencies with the reason for their
prescription, as well as removing any doubt as to whether the Australian Federal Police, when
performing policing duties for the Australian Capital Territory, and firearms authorities
within policing agencies, are captured as agencies subject to information sharing orders.
24. Only agencies, or parts of agencies, prescribed in the Regulations as 'information
sharing agencies' will be subject to orders in new Subdivision DA.
25. Consistent with the diverse nature of State and Territory policing, child protection and
firearms agencies, it is not appropriate to define the specific class of persons who may be
involved in information sharing within an information sharing agency. It is likely that
information sharing may be conducted by, or involve, State and Territory government
information release officers, case workers, individual officers and co-located child protection
or police officials within family court registries.
New section 67ZBD - Order to provide particulars of documents or information relating to
certain matters
26. New section 67ZBD would introduce a new order requiring the provision of
particulars of documents or information held by prescribed information sharing agencies,
which relate to family violence, child abuse or neglect risk in child-related proceedings.
27. This new order would introduce a process for the family law courts to gather
particulars (i.e. a summary, short description or outline) of documents or information held by
an information sharing agency, codifying the existing practice in some jurisdictions. The way
in which an information sharing agency provides this information is open to their discretion.
However, as an example, particulars may include the nature of documents or information
held, the agency's involvement with any named persons, and an indication of risk if
available.
28. The family law courts could use this order at any point in proceedings as provided by
new section 67ZBJ. An order under new section 67ZBD may be used to undertake risk
assessment or case management processes, target an order under new section 67ZBE, or
check for updated material known to information sharing agencies where proceedings are
protracted.
29. Paragraph 67ZBD(1)(a) would provide that an information sharing agency, as defined
by new section 67ZBC, would be required to inform the court whether they have in their
possession or control, documents or information which relate to certain matters of concern, as
provided by subsection 67ZBD(2). Paragraph 67ZBD(1)(b) would provide that where an
information sharing agency is in possession or control of such documents or information,
they must provide the court with particulars of documents or information held.
30. The Note included after paragraph 67ZBD(1)(b) makes it clear that an information
sharing agency is not required to provide protected material, and provides direction to new
section 67ZBF, which deals with protected material and its disclosure.
17
31. New subsection 67ZBD(2) provides the matters to which documents or information
held by information sharing agencies must relate under subsection 67ZBD(1). These matters,
provided by paragraphs 67ZBD(2)(a)-(d), are significantly broader than that which is
currently captured by section 69ZW. Currently, information sharing relating under section
69ZW is limited to:
a. notifications of suspected child abuse of a child concerned in proceedings or
suspected family violence impacting that child
b. assessments of the relevant agency of investigations into notifications of
suspected abuse or suspected family violence impacting the child, and/or
c. reports commissioned by the agency in the course of investigating a notification.
32. To align with the intention of enhanced information sharing under the National
Strategic Framework for Information Sharing between the Family Law and Family Violence
and Child Protection Systems (National Framework), and in recognition of the complex
nature of family violence and child abuse, the new information sharing orders (new sections
67ZBD and 67ZBE), would not be restricted to information relating only to the child
concerned in proceedings. To ensure the family law courts have all necessary information
available to support a holistic assessment of the best interests of the child, relevant
information relating to the safety and protection of any party to proceedings, or any child(ren)
or other persons connected to the proceedings, could be provided.
33. Accordingly, new paragraphs 67ZBD(2)(a)-(d) require information sharing agencies
to provide particulars of documents or information they hold which relate to:
a. abuse, neglect or family violence which a child concerned in proceedings has
been subjected or exposed, or to which the court suspects the child has been
subjected or exposed
b. family violence to which a party to proceedings has been exposed, or in which a
party to proceedings has engaged, to the extent it may affect a child to whom
proceedings relate
c. any risk or potential risk of a child to whom proceedings relate being subjected
or exposed to abuse, neglect or family violence, and
d. any risk, or potential risk, that a party to proceedings may be subjected to, or
engaging in, family violence to the extent any such family violence may affect a
child to whom proceedings relate.
34. New paragraphs 67ZBD(2)(a) and (b) concern past exposure or subjection of the child
to abuse, neglect or family violence; as well as past family violence experienced, or engaged
in, by a party to proceedings which may affect a child. New paragraphs 67ZBD(2)(c) and (d)
concern potential future risks of a child being exposed to abuse, neglect or family violence; or
a party experiencing or engaging in family violence in the future which may affect a child.
The inclusion of both past experiences and future risk will allow the court to
comprehensively consider the family safety risk for children and parties (including risk to
parties in their own right, where it may impact a child) when making parenting orders.
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35. New paragraph 67ZBD(2)(c) concerns the risk of a child being directly subjected to
or exposed to abuse, neglect or family violence in the future. This paragraph also ensures that
direct abuse, neglect or family violence risk to a child, broader than that posed by the parties
to proceedings, is able to be captured and considered by the court. This could include family
violence risks posed by significant people in the child's life who may or may not have
parental responsibility or be a party to proceedings.
36. New paragraph 67ZBD(2)(d), on the other hand, is more focussed on risks or
potential risks to the parties themselves being subjected to, or engaging in, family violence in
the future, to the extent it may affect a child. This provision highlights the importance of
considering any potential risk of family violence involving a party to proceedings in their
own right, acknowledging the affect it may also have on the manner in which that party
parents a child.
37. These provisions recognise that while in a majority of instances family violence
affecting, or perpetrated by, a party to proceedings, would inherently impact upon a child to
whom proceedings relate, there are instances where a child may otherwise be protected from
being directly exposed to family violence. Nevertheless, the child may be affected by this
family violence through its impact on the manner in which a party, who has been subjected
to, or is engaging in, family violence, parents a child.
38. For example, technology-facilitated abuse and violence may not be directed towards,
or shared with, a child to whom proceedings relate. However, the experience of that abuse
and violence may impact the way in which either party to proceedings engages, interacts with
or supports a child. It is intended that the inclusion of these provisions will ensure the court is
provided holistic information to make decisions which promote the best interests of the child,
and ensure the safety of all children and parties involved.
39. New subsection 67ZBD(3) provides that a court may include in the order descriptions
of the kinds of documents or information it believes the agency may have in its possession or
control that relate to the matters included in paragraphs 67ZBD(2)(a)-(d). However, the court
is not required to include a description, and any description included should not be read to
limit the scope of the order where the agency has in its possession or control documents or
information outside of the description provided.
40. New subsection 67ZBD(4) provides a non-exhaustive list of example descriptions of
documents or information which may be included in an order under new section 67ZBD. The
intention of this non-exhaustive list is two-fold: to provide examples of the kinds of
descriptions the family law courts could use in orders under new subsection 67ZBD(3), and
to provide guidance to both the family law courts and information sharing agencies of the
types of documents or information, the particulars of which are required to be provided under
new section 67ZBD.
41. For the avoidance of doubt, the Note at the end of new subsection 67ZBD(4) draws
the connection to section 15AD of the Acts Interpretation Act 1901, which has the effect that
the examples provided are non-exhaustive.
42. New subsection 67ZBD(5) provides that, when to responding to an order for
particulars under new section 67ZBD, an information sharing agency on its own initiative can
also provide the court with the documents or information for which the particulars are
required by the order. The intention of this subsection is that, where an order for documents
19
or information has not yet been made, but the information sharing agency considers it critical
the court have oversight of documents or information, they can be provided alongside other
particulars required. An example of such an instance may be the provision of an active
domestic violence order when interim orders are being considered by the court.
43. New subsection 67ZBD(6) provides that where an agency is producing a document or
giving information on its own initiative under new subsection 67ZBD(5), they must consider
redacting the document, or not providing the information, to the extent it contains protected
material. 'Protected material' is defined by new subsection 67ZBF(3).
44. This requirement has been modelled on existing section 69ZW and subpoena
processes, and aims to balance the protection of sensitive and confidential information with
the identification, assessment and management of risk. Requiring information sharing
agencies to redact or withhold sensitive information ensures relevant information can be
provided to support the family law courts' assessment of family violence, child abuse and
neglect risk in a safe and risk aware manner.
45. New subsection 67ZBD(7) provides that a State or Territory law has no effect to the
extent it would prevent or hinder an information sharing agency from complying with an
order under new section 67ZBD, or providing documents or information on its own initiative
under new subsection 67ZBD(5). This is similar to subsection 69ZW(4) which will be
repealed as a result of Item 8 of this Bill. The intention is that subsection 67ZBD(5) will
prevail to the extent of any inconsistency between it and the law of a State or Territory. This
will ensure that family law courts are able to order the same relevant information from all
information sharing agencies irrespective of any State or Territory legislative differences.
New section 67ZBE - Order to provide documents or information relating to certain matters
46. New section 67ZBE would introduce a new order requiring the production documents
or information held by prescribed information sharing agencies, which relate to family
violence, child abuse or neglect risk in child-related proceedings. New section 67ZBE is
constructed in a manner similar to new section 67ZBD. However, rather than targeting the
provision of particulars (i.e. a summary, short description or outline) of documents or
information in the control or possession of an information sharing agency, new section
67ZBE concerns the production and provision of the documents or information themselves.
47. New section 67ZBE is modelled on the power to order the production of certain
documents or information in section 69ZW, which will be repealed by Item 8 of this Bill,
while expanding the scope of the order to align with the intention of enhanced information
sharing under the National Framework.
48. New subsection 67ZBE(1) provides that the family law courts may make an order in
child related proceedings requiring an information sharing agency to produce any documents
and provide any information in the agency's control relating to a matter in new subsection
67ZBE(2).
49. Similar to the amendments proposed in new subsection 67BD(2), the relevant matters
outlined in new paragraphs 67ZBE(2)(a)-(d) are significantly broader than that which is
currently captured by section 69ZW. As the scope of matters covered by this order replicates
the scope proposed for the new order requiring particulars, these are the same matters as are
concerned in new paragraphs 67ZBD(2)(a)-(d).
20
50. New subsection 67ZBE(3) provides that a court may include in the order descriptions
of the kinds of documents or information it believes the agency may have in its possession or
control that relate to the matters included in paragraphs 67ZBE(2)(a)-(d). However, the court
is not required to include a description, and any description included should not be read to
limit the scope of the order where the agency has in its possession or control documents or
information outside of the description provided.
51. New subsection 67ZBE(4) provides a non-exhaustive list of example descriptions of
documents or information which may be included in an order under new section 67ZBE.
Similar to new subsection 67ZBD(4), the intention of this non-exhaustive list is two-fold: to
provide examples of the kinds of descriptions the family law courts could use in orders under
new subsection 67ZBE(3), and to provide guidance to both the family law courts and
information sharing agencies of the types of documents or information which are required to
be provided under new section 67ZBE.
52. New subsection 67ZBE(5) provides that, when responding to an order under new
section 67ZBE, an information sharing agency on its own initiative can also provide the court
with any other document or information in its possession or control (or particulars of that
document or information) that, in the agency's opinion, relates to matters mentioned in new
subsection 67ZBE(2).
53. New subsection 67ZBE(6) provides that where an agency is producing a document or
giving information on its own initiative under new subsection 67ZBE(5), they must consider
redacting the document, or not providing the information, to the extent they contain protected
material. 'Protected material' is defined by new subsection 67ZBF(3).
54. In line with the similar provision for orders for particulars at new subsection
67ZBD(6), this requirement has been modelled on existing section 69ZW and subpoena
processes, and aims to balance the protection of sensitive and confidential information with
the identification, assessment and management of risk. Requiring information sharing
agencies to redact or withhold sensitive information ensures relevant information can be
provided to support the family law courts' assessment of family violence, child abuse and
neglect risk in a safe and risk aware manner.
55. New subsection 67ZBE(7) provides that a State or Territory law has no effect to the
extent it would prevent or hinder an agency from complying with an order under new section
67ZBE, or providing particulars, documents or information on its own initiative under new
subsection 67ZBE(5). This is similar to subsection 69ZW(4), which will be repealed as a
result of Item 8. The intention is that subsection 67ZBE(8) will prevail to the extent of any
inconsistency between it and the law of a State or Territory. This will ensure that family law
courts are able to order the same relevant information from all information sharing agencies
irrespective of any State or Territory legislative differences.
New section 67ZBF- Disclosure of protected material
56. New section 67ZBF concerns the disclosure, or non-disclosure, of protected material
when an information sharing agency is providing particulars, documents or information to the
court under new sections 67ZBD or 67ZBF. Protected material is a new term within the Act
and is defined by subsection 67ZBF(3).
21
57. New subsection 67ZBF(1) provides that an order under either new section 67ZBD or
67ZBE does not require, but does allow, an information sharing agency to:
a. provide particulars of a document or information to the extent the particulars
would reveal protected material, (new paragraph 67ZBF(1)(a))
b. produce a document which contains protected material (new paragraph
67ZBF(1)(b)), or
c. give the court information that is protected material (new paragraph
67ZBF(1)(c)).
58. The Note at the end of new subsection 67ZBF(1) makes clear that information sharing
agencies must also consider the information sharing safeguards prescribed by the Regulations
when providing otherwise protected material under this subsection.
59. The broad presumption underpinning information sharing under the National
Framework is that information should be shared where it is relevant to decision-making about
a person's safety, or the protection of a child. However, it is recognised that this presumption
should be displaced by limited legal exceptions, which include those already applied to
section 69ZW and subpoena processes.
60. The current section 69ZW order only includes an exception that an agency is not
required to provide the court with documents or information that is not within the possession
of the agency, or that includes the identity of a person who made a notification. The broader
scope of orders under new sections 67ZBD and 67ZBE, however, necessitates the express
inclusion of additional instances where information is not required to be provided by
information sharing agencies.
61. New subsection 67ZBF(3) inserts these additional instances in providing what
constitutes 'protected material' for the purposes of new Subdivision DA. Under new
paragraphs (a)-(c), information sharing agencies would not be required to, but would be
allowed to, provide particulars, documents or information which they hold:
a. that is the subject of legal professional privilege
b. that discloses, or enables a person to ascertain, the identity of a person who
communicated information to the agency in confidence (such as a confidential
source of information or a notifier of suspected child abuse or family violence).
or
c. the disclosure of which would:
i. endanger a person's life or present an unreasonable risk of harm to a
person (including physical, non-physical and psychological harm)
ii. prejudice legal proceedings (including proceedings in a tribunal and a
coronial inquiry, investigation and inquest)
iii. contravene a court order or law that restricts the publication or other
disclosure of information in connection with legal proceedings, or
22
iv. be contrary to the public interest (including where disclosure would
prejudice an active police investigation, or reveal confidential police
methodology).
62. In addition to providing a basis for the exclusion of protected information, however,
new section 67ZBF also ensures information sharing agencies still have the option to provide
protected information to the family law courts, if in the opinion of an agency it is critical to
the court's decision-making. This is the intent of the wording in subsection 67ZBF(1) that
does not require, but does allow, an information sharing agency to share particulars,
documents or information in response to an order made under section 67ZBD or 67ZBE.
63. Additionally, new subsection 67ZBF(2) aims to ensure the court is aware of the
existence of excluded information. New subsection 67ZBF(2) provides that where an
information sharing agency does not provide particulars, documents or information to the
court on the basis that they are, or they contain, protected material, that agency must inform
the court that they have not provided the material, or are of the opinion they are not required
to provide that material. In doing so, the information sharing agency must also make clear to
the court what type of protected material, as set out in new paragraphs 67ZBF(3)(a)-(c), is
applicable.
64. The intention of this provision is to ensure the court is aware of the existence of
further material, which in the opinion of the information sharing agency is protected material.
The court can then engage with the information sharing agency directly about whether this
information is critical for the purposes of decision-making, and if so, what additional
protections, safeguards and practices can be applied to support its safe provision to the court.
New section 67ZBG - Advice to court about risk of disclosure
65. New subsection 67ZBG(1) introduces a formal process by which an information
sharing agency can alert the family law courts directly to risks associated with the disclosure
of particulars, documents or information provided in response to an order under new sections
67ZBD and 67ZBE, including information provided on the agency's own initiative.
66. New subsection 67ZBG(2) outlines that the agency may advise the court about any
risks associated with the disclosure of material shared, including any risk to a party to
proceedings, a child to whom proceedings relate, a person who communicated information in
confidence to an agency (such as a notifier of family violence or child abuse), or any other
person (as provided in new paragraphs (a)-(d)).
67. The intention of providing advice to the court on risks associated with the disclosure
of material is to balance the protection of confidences, safety and wellbeing of all relevant
persons, against the principles of natural justice and procedural fairness which would be in
favour of disclosure. This is consistent with existing inadmissibility provisions relating to
family safety risk screening information, contained in Divisions 1 and 2 of Part IIA of the
Act, which is used during the initial stages of case management to identify, assess and
respond to family safety risk.
New section 67ZBH - Admission of particulars, documents or information into evidence
68. New subsection 67ZBH(1) provides that the court must admit into evidence any
particulars, documents or information provided in response to orders under new sections
23
67ZBD or 67ZBE, or on the agency's own initiative, on which the court intends to rely. This
ensures that where the court intends to rely on particulars, documents or information it has
received relating to family violence, abuse and neglect, the parties are aware of the
information and have an opportunity to respond. This accords with principles of natural
justice and procedural fairness.
69. However, the Bill recognises that the identity of notifiers of suspected child abuse or
family violence to child protection agencies, police and firearm agencies should be kept
confidential, except in limited circumstances.
70. New subsection 67ZBH(2) provides that if a particular document or information is, or
relates to, any item described in paragraphs (a)-(c), then the court must not disclose the
identity of the person (the notifier) who made a notification, or information that could
identify the notifier, unless an exception in new subsection 67ZBH(3) applies. Those matters
covered in paragraphs (a)-(c) are information that relates to:
a. a notification to the agency of suspected child abuse or family violence
b. an assessment by the agency of investigations into a notification of that kind or
the findings or outcomes of those investigations, or
c. a report commissioned by the agency in the course of investigating a
notification.
71. New subsection 67ZBH(3) provides the limited circumstances in which the court may
disclose the identity, or information that could identify, a person who made a notification of
suspected abuse, neglect or family violence. Those limited circumstances are set out in
paragraphs (a)-(c) as being:
a. where the notifier consents to the disclosure
b. the notifier is a party to the proceedings, or
c. the court is satisfied that the notifier's identity, or information that could identify
the notifier, is critically important to proceedings and that failure to make the
disclosure would prejudice the proper administration of justice.
72. The limited circumstances in new subsection 67ZBH(3) seek to retain the protections
for the identity of notifiers in the current subsection 69ZW(6), which will be repealed through
Item 8 of this Bill. This approach acknowledges the importance of protecting a notifier's
identity in most circumstances to ensure there is no disincentive for concerned individuals to
notify relevant authorities of suspected child abuse or family violence. The inclusion of
limited exceptions balances acknowledgement of this overarching principle against
circumstances where non-disclosure of a notifier's identity could result in a failure in the
administration of justice, this includes where a party to proceedings is themselves a relevant
notifier.
73. New paragraph 67ZBH(4)(a) ensures that before any disclosure is made under new
paragraph 67ZBH(3)(c), the information sharing agency that provided the relevant
information identifying the notifier is notified and provided an opportunity to respond. This
retains the obligation on the court in subsection 69ZW(7), which will be repealed through
24
Item 8 of this Bill. This requirement is designed to ensure there is an appropriate process to
determine that the requirements of paragraph 67ZBH(3)(c) have been met (namely that the
information is critically important and that failure to make the disclosure would prejudice the
proper administration of justice).
74. New paragraph 67ZBH(4)(b) provides that before making a disclosure under new
paragraph 67ZBH(3)(c) the court must also have regard to any advice on risks associated
with disclosure provided by the information sharing agency under new section 67ZBG. This
will further address concerns about the sensitives in release of information, adding an
additional avenue through which risks about disclosure can be communicated with the court.
75. New subsection 67ZBH(5) provides that the court is not required to admit into
evidence particulars, documents or information provided by an agency in response to an order
under new sections 67ZBD or 67ZBE, or on its own initiative under new subsections
67ZBD(5) or 67BE(5), if it only intends to rely on that material for the purposes of case
management. This would include for the purposes of family safety risk screening and triaging
of matters by family law court registry staff for urgent listing or Evatt List consideration.
New section 67ZBI - Information sharing agencies and court must have regard to
information sharing safeguards
76. Information concerning family violence and child abuse risk is inherently sensitive
and can pose a safety risk to parties when mismanaged or inappropriately shared.
77. New section 67ZBI provides that 'information sharing safeguards' will be prescribed
within the Family Law Regulations 1984. The information sharing safeguards to be
prescribed by the Regulations would build upon protections within this Bill by ensuring that
information shared is collected, used, disclosed and stored in an appropriate manner. The
types of information sharing safeguards to be prescribed are expected to include matters to
ensure:
a. information is only requested, ordered, and shared to the extent necessary to
identify, assess, manage and respond to family violence, child abuse and neglect
risk
b. information sharing is conducted in good faith, avoiding conflicts of interest and
with reasonable care to the safety of staff, parties to proceedings and relevant
third parties
c. information is sent and received in a secure manner, which limits further
disclosure
d. reasonable steps are taken to ensure that parties who may pose, or are alleged to
pose, a family safety or child abuse risk cannot access sensitive information that
may prejudice the safety of another person, while ensuring access to natural
justice, and
e. if discovered that information recorded and shared is incorrect, best efforts are
made to correct the information shared and update relevant records.
25
78. These information sharing safeguards are intended to provide a minimum standard of
safeguards for the protection of information when it is used, shared and accessed. It is
expected that these safeguards will complement existing practices within the courts and
information sharing agencies, providing greater assurances and transparency for families and
individuals about how this information is being shared and used.
79. New subsection 67ZBI(1) would provide that agencies must consider and have regard
to the prescribed safeguards when providing particulars, documents or information in
response to an order under either new section 67ZBD or new section 67ZBE. This includes
when information sharing agencies provide particulars, documents or information under their
own initiative, as provided for by new subsection 67ZBD(5) and new subsection 67ZBE(5).
80. New subsection 67ZBI(2) provides that the court must also consider and have regard
to the prescribed safeguards when using particulars, documents or information provided by
information sharing agencies on their own initiative or in response to orders under new
section 67ZBD or new section 67ZBE.
81. New subsection 67ZBI(3) provides that 'use' in new subsection 67ZBI(2) includes the
handling, storage and access of particulars, documents or information.
New section 67ZBJ - When orders may be made
82. New subsection 67ZBJ(1) provides that an order under new section 67ZBD or new
section 67ZBE may be made at any point during child-related proceedings, before final
orders are made. The intention of this is to provide flexibility to the court in the use of these
new orders, ensuring they can be used for the early identification and assessment of family
violence, abuse and neglect risk, while also providing an avenue through which the court can
seek updated information held by agencies in protracted proceedings.
83. New subsection 67ZBJ(2) provides that the court is not required to have made an
order under new section 67ZBD before making an order under new section 67ZBE. This
provision clarifies that while there may be benefit in the court using particulars provided in
response to a new section 67ZBD order to 'target' an order for documents or information
under new section 67ZBE, the court is not required to follow this process. Retaining the
court's discretion in this manner recognises there may be value in seeking documents and
information through a new section 67ZBE order at the earliest opportunity in some instances.
New section 67ZBK - Subpoena in respect of certain documents or information
84. New section 67ZBK provides where an order under new section 67ZBE has been
made, requiring an information sharing agency to provide documents or information to the
court in child-related proceedings, permission of the court must be obtained to issue a
subpoena to that same information sharing agency.
85. This requirement is in line with existing restrictions on subpoenas in the Federal
Circuit and Family Court of Australia (Family Law) Rules 2021, which restrict the issue of
subpoenas without permission from the court in certain circumstances. Current Rule 6.27
provides a number of circumstances in which parties to proceedings require permission from
the court to request the issue of a subpoena, including where litigants are self-represented, or
where a party exceeds five requests for subpoenas for production for the hearing of an
application for an interlocutory order.
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86. New section 67ZBK is intended to reduce unnecessary duplication of information
before the courts and mitigate the burden on information sharing agencies of responding to
multiple requests for the same information. This requirement also supports the overall
purpose of this Bill to shift away from party-driven information sharing towards a system of
court-led information sharing in relation to family violence, abuse and neglect risk.
87. New section 67ZBK is not intended to prevent a party from issuing a subpoena where
a new section 67ZBE order has not been issued to the information sharing agency in question.
88. The requirement for parties to seek the permission of the court is intended to provide
flexibility in the issue of subpoenas to information sharing agencies where a new section
67ZBE order has been issued, where the parties demonstrate the agency is likely in
possession of documents or information that has not otherwise been provided to the court.
New section 67ZBL - Review of provisions
89. New subsection 67ZBL(1) would provide that a review of amendments in this Bill
must be commenced within 12 months of commencement of new Subdivision DA.
90. New subsection 67ZBL(2) provides that the review of amendments must consider the
effectiveness of new Subdivision DA, as well as the amendments to the Regulations
prescribing information sharing agencies and information sharing safeguards. The
effectiveness of new Subdivision DA and the Regulations must be considered in relation to
achieving the objectives of the National Framework.
91. The Note at the end of new subsection 67ZBL(2) provides how the
National Framework, as endorsed by Attorneys-General, is able to be accessed.
92. New subsection 67ZBL(4) provides that the report commissioned by the Minister
(new subsection 67ZBL(3)) must be tabled in both houses of the Parliament within 15 sittings
days of completion. The intention of this is to promote transparency in the operation and
evaluation of the National Framework and these amendments.
93. The intention of a review of the operation of amendments in this Bill is to ensure that
the information sharing scheme introduced by new Subdivision DA is operating as intended,
supporting the timely and effective sharing of family violence, abuse and neglect information,
while appropriately safeguarding sensitive information.
Item 8 - Section 69ZW
94. Item 8 repeals section 69ZW. This amendment is necessary to avoid duplication and
give effect to the expanded information sharing scheme provided for by Item 7.
Item 9 - Application of amendments
95. Item 9 provides that in respect of orders made before the repeal of section 69ZW,
provided by Item 8, section 69ZW would continue to have effect in respect of those orders.
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