BILLS DIGEST NO. 16, 2020–21              7 October 2020

Family Law Amendment (Risk Screening Protections) Bill 2020

David Markham
Law and Bills Digest Section 

Date introduced: 26 August 2020

House:  Senate

Portfolio: Attorney-General

Commencement: The main amendments (Part 1 of Schedule 1) commence on the seventh day after Royal Assent. The contingent amendments (Part 2 of Schedule 1) are reliant on the passage of other legislation, as will be explained.

Links: The links to the Bill, its Explanatory Memorandum and second reading speech can be found on the Bill’s home page, or through the Australian Parliament website.

When Bills have been passed and have received Royal Assent, they become Acts, which can be found at the Federal Register of Legislation website.

All hyperlinks in this Bills Digest are correct as at October 2020.

Purpose of the Bill

The purpose of the Family Law Amendment (Risk Screening Protections) Bill 2020 (the Bill) is to amend the Family Law Act 1975 (the Act) to ensure that family safety risk screening in the federal family law courts can operate successfully by establishing protections for sensitive information generated through the screening, and by conferring immunity on court workers involved.

Structure of the Bill

The Bill contains amendments set out in one Schedule. Part 1 of the Schedule contains the main amendments to the Act. Part 2 contains consequential minor amendments, relating to nomenclature only, which will only be implemented if the Federal Circuit and Family Court of Australia Bill 2019 becomes law.[1] If that does not occur, the proposed amendments in Part 2 will be void.[2]

Background

Over a considerable period of time various studies have indicated that families with complex needs, including those related to violence, are the predominant clients of the family law system.[3] How justice for the litigating parties can be achieved in such circumstances has been considered in a number of recent reviews of family law. In 2016 the Family Law Council, an advisory body advising the Attorney-General on family law matters, commented:

… a significant proportion of the dispute workload of the family law system, and particularly among client families with complex needs, is characterised by a history of family violence or other behaviours that raise safety concerns for children. In order to support protective responses to children in these cases, it is critical that each of the family law system’s services and organisations, including the family courts, family lawyers and family dispute resolution services, is able to screen, identify and assess the presence of risk to the child at the earliest opportunity.[4]

Consequently the Council recommended:

Having regard to the issues of abuse, neglect and family violence and the need for such evidence to be broadly available to protect children, the Australian Government should incorporate a whole-of-family risk assessment process into the family law system that is non-confidential and admissible.[5]

Consistent with the general thrust of the Family Law Council’s report, in a 2017 report the House of Representatives Standing Committee on Social Policy and Legal Affairs said:

The Committee recommends that the Australian Government introduces to the Parliament amendments to the Family Law Act 1975 (Cth) to require a risk assessment for family violence be undertaken upon a matter being filed at a registry of the Family Court of Australia or the Federal Circuit Court of Australia, using the national family violence risk assessment tool. The risk assessment should utilise the national family violence risk assessment tool and be undertaken by an appropriately trained family violence specialist provider.[6]

In its annual report for 2018–19, the Family Court of Australia said:

During 2018–19, the Court considered a new approach to risk assessment and triage that would assist in the early identification of high-risk cases and enable better support for families in need of assistance. The overarching goal is to improve the safety outcomes for families involved in family violence-related cases.

The development of a risk screening tool to quickly identify issues of family violence and people who are at significant risk of harm, is a priority for the Court. The introduction of a screening tool would also enable earlier information sharing with police and government agencies in high-risk cases. The Court is also considering how early case assessment and screening processes could be used to identify families with high needs and refer them to external support services. The project is at an early stage of development, however to fully complete and implement a new risk screening tool, the Court is dependent on securing government funding.[7]

As noted by the Family Court, the implementation of a risk assessment tool was dependent on additional funding for the Court. In December 2019, as part of the Mid-Year Economic and Fiscal Outlook 2019–20, the Australian Government announced funding of $13.5 million over three years (with $6.5 million allocated to both 2020–21 and 2021–22) in order to:

… pilot a screening and triage program for matters being considered by family law courts, with three interconnected processes: screening parenting matters for family safety risks at the point of filing; triaging matters to an appropriate pathway based on the identified level of risk; and maintaining a specialist list to hear matters assessed as involving a high risk of family violence.[8]

The intention is to conduct the risk screening trial between 2020 and 2022 at the Adelaide, Brisbane and Parramatta registries of the federal family law courts, which collectively receive more than 42 per cent of family law filings.[9] A dedicated team will screen newly filed parenting matters for family safety risks, and take appropriate action. Follow-up action will be taken by a family counsellor in matters identified as high risk.[10]

The running of these trials demands some amendments to the Act, largely to ensure that the highly sensitive information that will be obtained and generated through the risk screening process is subject to appropriate legal protections, and that there are appropriate protections for the court workers who undertake these roles.[11]

A number of other issues related to family violence or unfairness in the family law process have been addressed legislatively in recent years, for example in the Family Law Amendment (Family Violence and Other Measures) Act 2018 and the Family Law Amendment (Family Law and Cross-examination of Parties) Act 2018. This Bill potentially represents another step in resolving risk issues in the family law process.

Committee consideration

Senate Standing Committee for the Selection of Bills

In its report dated 3 September 2020, the Selection of Bills Committee recommended the Bill not be referred to a Committee.[12]

Senate Standing Committee for the Scrutiny of Bills

The Scrutiny of Bills Committee stated that it had no comment on the Bill.[13]

Policy position of non-government parties/independents

No comment on this Bill could be located.

Position of major interest groups

No comment since the Bill was tabled could be located.

Financial implications

There are no financial implications from implementing the Bill, beyond the previously announced funding for the trial.[14]

Statement of Compatibility with Human Rights

As required under Part 3 of the Human Rights (Parliamentary Scrutiny) Act 2011 (Cth), the Government has assessed the Bill’s compatibility with the human rights and freedoms recognised or declared in the international instruments listed in section 3 of that Act. The Government considers that the Bill is compatible.[15]

Parliamentary Joint Committee on Human Rights

The Committee stated that it had no comment on the Bill.[16]

Key issues and provisions

The Bill’s Explanatory Memorandum states:

The pilot will involve screening parenting matters for family safety risks at the point of filing, triaging matters according to the level of identified risk, providing additional assistance to at-risk parties, and operating a specialist list in the Federal Circuit Court of Australia to resolve cases assessed as at high-risk of family violence.[17]

These processes will be undertaken by what is described in item 1 of the Bill as a family safety risk screening person. That term is defined in proposed section 10R of the Act as including an officer or staff member of the federal family law courts (either the Family Court or Federal Circuit Court); a family counsellor; a contractor engaged by the Courts; or an officer, employee or subcontractor of such a contractor.

A family safety risk screening person will perform their duties by undertaking a family safety risk screening process (proposed section 10T) and by obtaining family safety risk screening information (proposed section 10S).

The family safety risk screening process is intended to identify:

•       persons who are at risk of being subjected to family violence

•       children at risk of abuse, violence or neglect and/or

•       any other safety risks

for the purpose of prioritising and managing cases.[18]

The current proposed amendments to the Bill do not mandate how a family safety risk screening process must be carried out, other than to say that the process must involve the use of a risk screening tool,[19] as determined by the Chief Executive by notifiable instrument.[20] They rather focus on the protection of information and staff immunity. The family safety risk screening process may also involve a risk assessment carried out by a family counsellor.[21]

Provisions about information

The Bill provides for the protection of family safety risk screening information, which will include any information obtained, in whatever form, by a family safety risk screening person undertaking the screening process, including whether a person (a party to the court proceedings) has been part of that process.[22] This information also includes reports, recommendations and similar generated in the process.[23]

Family safety risk screening information is generally confidential. It can only be disclosed by a family safety risk screening person in situations that are authorised in the Bill.[24] Authorised situations for disclosure are:

•       where the risk screening person reasonably believes that disclosure is necessary to comply with Australian law—in this case they must disclose the information[25]

•       to another risk screening person in the course of that person’s risk screening duties[26]

•       to a party to the process, where the original information was provided by (or came from information provided by) that party and relates to that party[27]

•       where consent to the disclosure is given by a party of 18 years or over and the information relates to and was provided by that party, or came from information provided by that party; consent to disclosure can be given for similar information relating to a person under 18 by a court [28]

•       where the risk screening person reasonably believes that disclosure is necessary to:

–      protect a child from harm

–      avert a serious and imminent threat to the life, health or property of a person

–      report the commission, or likely commission, of an offence of violence to a person or damage to property or

–      assist a lawyer representing a child’s interests under section 68L of the Act[29] or

•       for research purposes.[30]

Generally, family safety risk screening information can only be used for its intended purpose and is not admissible in any court, or in other proceedings before a person authorised to hear evidence.[31] The fact that information is authorised to be disclosed by proposed section 10U does not of itself make that information admissible in proceedings.[32] Information provided to a professional (such as a medical practitioner) by reference from a family safety risk screening person is similarly inadmissible.[33] The family safety risk screening person making a reference to a professional must advise the professional of this.[34]

The single exception to this is where the information indicates that a child under 18 has been abused or is at risk of abuse and where evidence from other sources would not be sufficient to demonstrate this.[35]

Protection for workers

Proposed section 10W of the Act specifies that a family safety risk screening person, as defined in proposed section 10R, has the same protection and immunity in performing their duties as a Family Court Judge. This basically means that a family safety risk screening person, assuming that they are performing their duties in good faith, will have complete protection from civil suit.[36]

Timing of provisions

Item 3 of the Bill states that the proposed provisions, in regard to disclosure and admissibility, will apply to relevant information gained or generated before the provisions take effect, as well as information obtained after the provisions take effect. However the protection and immunity for family risk screening persons only applies on or after the commencement of the proposed provisions.

Permanent amendments to the Act

While the Explanatory Memorandum states that these provisions are to be introduced into the Act to support the implementation of a pilot program,[37] the proposed provisions are not sunsetted—which is to say, they are not time limited and will remain in the Act. This means that any future family safety risk screening trial, or the adoption of this process as normal practice, will probably not require any further legislative amendment.

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[1].              See: Parliament of Australia, ‘Federal Circuit and Family Court of Australia Bill 2019 homepage’, Australian Parliament website. The Bill was before the House of Representatives at the time of writing.

[2].              Clause 2 of Bill (Item 3 in Table).

[3].              M Neilsen, Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2011, Bills digest, 126, 2010–11, Parliamentary Library, Canberra, 25 May 2011, p. 7.

[4].              Family Law Council, Families with complex needs and the intersection of the family law and child protection systems: final report, Attorney-General’s Department, [Canberra], June 2016, p. 121.

[5].              Ibid. The relevant recommendation is recommendation 2 at p. 123.

[6].              House of Representatives Standing Committee on Social Policy and Legal Affairs, A better family law system to support and protect those affected by family violence, House of Representatives, Canberra, December 2017, p. xxix, paragraph 4.240.

[7].              Family Court of Australia (FCA), Annual report 2018–2019, FCA, Canberra, 2019, p. 7.

[8].              J Frydenberg (Treasurer) and M Cormann (Minister for Finance), Mid-year economic and fiscal outlook 2019–20, p. 199.

[9].              J Duniam, ‘Second reading speech: Family Law Amendment (Risk Screening Protections) Bill 2020’, Senate, Debates, 26 August 2020, p. 4134.

[10].              Ibid.

[11].              Explanatory Memorandum, Family Law Amendment (Risk Screening Protections) Bill 2020, p. 3.

[12].              Senate Standing Committee for the Selection of Bills, Report, 8, 2020, The Senate, Canberra, 3 September 2020, [p. 4].

[13].              Senate Standing Committee for the Scrutiny of Bills, Scrutiny digest, 11, 2020, 2 September 2020, p. 16.

[14].              Explanatory Memorandum, op. cit., p. 3.

[15].              The Statement of Compatibility with Human Rights can be found at pages 4 to 10 inclusive of the Explanatory Memorandum to the Bill.

[16].              Parliamentary Joint Committee on Human Rights, Human rights scrutiny report, 11, 2020, 24 September 2020, p. 81.

[17].              Explanatory Memorandum, op. cit., p. 2.

[18].              Proposed subsection 10T(1).

[19].              Proposed subsection 10T(2).

[20].              Proposed subsection 10T(3).

[21].              Proposed subsection 10T(4).

[22].              Proposed subsection 10S(1).

[23].              Proposed subsection 10S(2).

[24].              Proposed subsection 10U(1).

[25].              Proposed subsection 10U(2).

[26].              Proposed subsection 10U(5).

[27].              Proposed subsection 10U(3).

[28].              Proposed subsection 10U(4).

[29].              Proposed subsection 10U(6). Section 68L of the Act applies where a court orders that a child’s best interests require representation by an independent lawyer.

[30].              Proposed subsection 10U(7). Information disclosed for this purpose must not be personal information within the meaning of section 6 of the Privacy Act 1988—that is, information or an opinion about an identified or reasonably identifiable individual.

[31].              Proposed subsection 10V(1).

[32].              Proposed subsection 10U(8).

[33].              Proposed subsection 10V(3).

[34].              Proposed subsection 10V(5).

[35].              Proposed subsections 10V(2) and 10V(4).

[36].              P Nygh and P Butt, eds, Butterworths concise Australian legal dictionary, Butterworths, Sydney, 1997, p. 224.

[37].              Explanatory Memorandum, op. cit., p. 2.