Operationalising the National Strategic Framework for Information Sharing Between the Family Law and Family Violence and Child Protection Systems
The submission to the Attorney-General’s Department (AGD) in response to its Consultation Paper, Operationalising the National Strategic Framework for Information Sharing Between the Family Law and Family Violence and Child Protection Systems (Consultation Paper) was prepared by the Law Council of Australia.
In principle, the Law Council supports processes that facilitate the awareness within the Federal Circuit Court and Family Court of Australia (the Family Courts) (including in their new merged form as at 1 September 2021) of family violence risk, for the purposes of protecting vulnerable parties through case management and determining the substantive legal issues.
Currently, courts may be required to make decisions, particularly on an interim basis, without access to all the information necessary to make safe and fully informed decisions. The prompt and comprehensive exchange of information between relevant courts and authorities under the proposed National Strategic Framework for Information Sharing between the Family Law and Family Violence and Child Protection Systems (National Framework) is likely to contribute to better outcomes for vulnerable parties and children.
The Law Council agrees with the assessment in the Consultation Paper that the use of subpoenas to inform the courts about family violence can be cumbersome. This is particularly true for self-represented litigants. Subpoenas also do not necessarily produce documents that are relevant and appropriate. However, it is noted that processes should not exclude or unduly limit the capacity of a litigant to issue a subpoena, particularly in the context of a matter proceeding to trial.
While the implementation of the National Framework may help to address the issues identified in the Consultation Paper, the benefits of reform must be balanced with the risk of exposing parties to further violence if private or sensitive information is inadvertently brought to light or made available to the parties as a result of the reforms. In this regard, the National Framework must adequately balance privacy concerns and protect sensitive information. The Law Council also highlights the necessity for appropriate resourcing and training of the relevant courts and agencies if the reforms are to succeed.
It is unclear how the existing Notice of Risk document (whatever final form it will take when new forms are released upon the commencement of the Federal Circuit Court and Family Court of Australia) will fit with the processes contemplated in the Consultation Paper. As is addressed further below, in the Federal Circuit Court of Australia, the Notice of Risk document is currently provided to relevant welfare agencies and if they hold records, that information is provided to the court (and then to the parties) in short form/summary report. That process is often then the foundation for the making of an order under section 69ZW of the Family Law Act 1975 (Cth) (the FLA) by the court.
The Law Council looks forward to providing further feedback to the AGD when a detailed proposal and/or draft legislation is available.
You can read the full submission below.