Bringing evidence of violence and abuse to court

Requiring parties to disclose child welfare orders and involvement of child welfare authorities

1.25 In relation to Item 21 of the Exposure Draft legislation, the ALRC supports the aspiration to improve information available to federal family courts about the involvement of child welfare authorities and care arrangements under child welfare laws. The ALRC considers it imperative that federal family courts, in making decisions about a child, should also be aware of all past or current orders under state and territory child welfare legislation and pending proceedings for such orders, in relation to that child or another child who is a member of that child’s family, irrespective of whether the orders relate to care arrangements. However, as discussed below, the ALRC does not support imposing a legal obligation on parties to inform the court of such orders.

1.26 Although not specifically canvassed in ALRC Report 114, the ALRC sees merit in federal family courts also being aware of, in relation to a child the subject of parenting proceedings:

• notifications or reports to state and territory agencies; and
• investigations, inquiries or assessments by state and territory agencies where they relate to abuse.

Courts require access to such information to ensure that decisions are informed, appropriate, and protective.

1.27 However, the ALRC has reservations about the provisions proposed in Item 21 which impose an obligation on parties to inform federal family courts of these matters (paragraphs 60CH(1) and 60CI(1)). In the course of the Family Violence Inquiry, the Commissions considered the imposition of legally enforceable obligations of disclosure on parties as a mechanism to inform courts of orders and proceedings—albeit in a different jurisdiction. This mechanism was considered in the context of family violence legislation, for the purpose of furnishing state and territory courts with information about relevant proceedings and orders in federal family courts.^[31] In ALRC Report 114, having regard to stakeholder views, the Commissions declined to recommend the imposition of such an obligation on parties, concluding:

stakeholders have indicated that it is not helpful to impose an obligation of this kind on parties—where failure to provide the information is likely to involve a sanction of some kind—given that many will be unrepresented, and some will be more vulnerable, such as those from culturally and linguistically diverse backgrounds and persons with a disability.^[32]

However, the Commissions recommended a range of other mechanisms to ensure that courts obtain such information from parties and by other means, and these are outlined below.

Alternative mechanisms to obtain information from parties

1.28 In ALRC Report 114 the Commissions recommended a range of mechanisms to ensure that courts obtain information relevant to proceedings conducted before them. In relation to federal family courts collecting information about child welfare in parenting proceedings, the Commissions recommended that:

• The Initiating Application (Family Law) and Initiating Application (Family Law) Response forms should clearly seek information about past and current family violence and child welfare orders obtained under state and territory family violence and child welfare legislation and past, pending or current proceedings for such orders.^[33]

• The Initiating Application (Family Law) and Initiating Application (Family Law) Response forms should be amended to include a question seeking more general information, for example, ‘Do you have any fears for the safety of you or your child or children that the court should know about?’^[34]

1.29 The ALRC considers that including clear, specific questions on application forms about family violence and child safety is a more effective mechanism to obtain information from parties than imposing a legal obligation, as proposed in Item 21 of the Exposure Draft legislation.^[35]

1.30 In addition, the ALRC strongly supports the mechanism proposed at Item 32 paragraph (1) of the Exposure Draft legislation, which imposes a duty on federal family courts to inquire about family violence and abuse, in parenting proceedings. While the Commissions did not recommend that a duty to inquire into these matters be imposed on federal family courts in ALRC Report 114, the Commissions generally considered this method to be appropriate and effective in eliciting relevant information from parties to proceedings.^[36]

Mechanisms to obtain information other than from parties

1.31 The above mechanisms to elicit information from parties should go some way to ensure federal family courts have access to information about child abuse and family violence. However, the ALRC considers it insufficient to leave notifications about family violence, orders in other jurisdictions, and the involvement of child welfare authorities, to the parties to proceedings. Parties may not disclose this relevant information due to ignorance, neglect or malice.^[37] Additionally, as mentioned above, vulnerable parties and those who are unrepresented may fail to disclose such matters. The ALRC considers that further mechanisms are necessary to ensure that courts are furnished with relevant information about family violence and child abuse.

1.32 In ALRC Report 114, the Commissions recommended the establishment of a national register—a key component of a suite of reforms to enhance information sharing between courts, police and child welfare authorities. The Commissions recommended that the register include various orders, including orders made under family violence and child welfare legislation.^[38] The Commissions also made numerous recommendations to improve information sharing between federal family courts and child welfare authorities, contained in Ch 30.^[39] Further, the Commissions recommended that arrangements should be made for child welfare authorities to provide investigatory and reporting services to family courts in cases involving children’s safety.^[40] If these recommendations are implemented, federal family courts will be well positioned to access information about family violence and child abuse, irrespective of the willingness and abilities of parties to provide relevant information to the courts.

Removing legislative barriers to information flow to federal family courts

1.33 The provisions proposed in Item 21 of the Exposure Draft legislation relate to informing a federal family court of

• care arrangements under child welfare laws (paragraph 60CH); and
• notifications to, and investigations by, prescribed state or territory agencies (paragraph 60CI) concerning abuse of a child the subject of parenting proceedings or another child who is a member of the child’s family.

1.34 These proposed paragraphs are similar to s 60CF of the Family Law Act, which relates to informing the court of relevant family violence orders. Paragraphs 60CH(1) and 60CI(1)—like the existing s 60CF(1)—impose a legal obligation on parties to disclose matters, and are not supported by the ALRC, for the reasons discussed above in relation to Item 21 of the Exposure Draft legislation. Paragraphs 60CH(2) and 60CI(2)—like the existing s 60CF(2)—provide that a person who is not a party to the proceedings may inform the court of the matters to which they relate. The ALRC sees merit in proposed paragraphs 60CH(2) and 60CI(2). However, in order for these provisions to operate effectively, consideration needs to be given to removing certain legislative barriers to the potential flow of information to federal family courts.

1.35 Family violence legislation in all states and territories prohibits the publication of certain information about persons involved in, or associated with, family violence order proceedings.^[41] In addition, child welfare legislation in all states and territories contains provisions for protecting the confidentiality of information collected by child welfare authorities or for precluding such information from being admissible in another proceeding.^[42] These provisions in state and territory legislation may constitute inappropriate legislative barriers to federal family courts in accessing information about family violence orders and related proceedings, and information held by child welfare authorities.

1.36 Accordingly, the paragraphs proposed in Item 21 may be complemented by the reform of state and territory legislation to facilitate the provision of the information specified in those paragraphs. In particular, the ALRC draws to your attention the following recommendations made in ALRC Report 114:

• Non-publication provisions in state and territory family violence legislation should expressly allow disclosure of information in relation to family violence orders and related proceedings that contains identifying information in appropriate circumstances, including disclosure of family violence orders to the federal family courts under s 60CF of the Family Law Act.^[43]

• State and territory child welfare legislation should not prevent child welfare authorities from disclosing to federal family courts relevant information about children involved in federal family court proceedings in appropriate circumstances.^[44]

Requiring parties alleging family violence to file notice in court

1.37 The ALRC supports Item 29 of the Exposure Draft legislation, which proposes that parties alleging family violence file a notice in the court in the prescribed form. The ALRC considers that there is a distinction between imposing obligations on parties alleging family violence in parenting proceedings to provide information to the court about that violence, and imposing a general obligation on all parties to parenting proceedings to provide information about family violence in the absence of relevant allegations.

1.38 As discussed above, it is not sufficient to rely solely on information provided by parties to proceedings, and alternative mechanisms, such as the national register, should be implemented to furnish federal family courts with relevant information about family violence. The requirement proposed in Item 29 would complement the suite of recommendations made by the Commissions to improve information about family violence available to federal family courts.

Proposed amendment of s 60CC(3)(k) of the Family Law Act

1.39 The ALRC welcomes the aspiration in Item 19 of the Exposure Draft legislation. In ALRC Report 114, the Commissions expressed the view that there is no principled basis to exclude interim and uncontested family violence orders from consideration by federal family courts.^[45] Interim and uncontested family violence orders may be made for a number of reasons, and do not necessarily reflect the risk, or the evidence, of family violence. The Commissions considered the legislative guidance in s 60CC(3)(k) of the Family Law Act misleading, in that it suggests that courts give more or less consideration to various kinds of protection orders, rather than looking behind those orders to consider all the evidence regarding the nature, impact and risk of past or future family violence.^[46]

1.40 However, the ALRC does not support the form of the amendment to s 60CC(3)(k) proposed in Item 19. In ALRC Report 114, the Commissions noted that the existence of a family violence order may not reflect a specific finding of family violence in state and territory courts. Consequently, the Commissions considered that family violence orders should not be included as a separate factor to be considered by the court in determining the best interests of the child. Instead, family violence orders should act as a flag that there may be issues of family violence that should be considered by the court.^[47]

1.41 The Commissions recommended that the ‘additional consideration’ in s 60CC(3)(k) of the Family Law Act should be amended to provide that a court, when determining the best interests of the child, must consider evidence of family violence given in relevant family violence order proceedings.^[48] A family violence order may be one part of the evidence provided to a federal family court to support allegations of family violence. Federal family courts should also be required to look behind the family violence order at the evidence of family violence provided in those proceedings—for example, affidavits, oral evidence, statements from police or other witnesses, medical reports, information provided by child welfare authorities, and court transcripts.^[49]

1.42 The Commissions also recommended that s 60CC(3)(k) should be amended to provide that a court must consider findings of family violence made in relevant family violence order proceedings.^[50] Consideration of the evidence provided and findings made in family violence proceedings minimises re-litigation on the issue of family violence, and limits the need for victims to repeat their evidence in different courts.^[51] Further, such an approach to the reform of s 60CC(k) may ‘address the perception that the mere fact that a person has a protection order is, of itself, critical to the outcome of parenting matters’.^[52]

Removing disincentives to disclosing violence

1.43 The ‘friendly parent’ and mandatory costs order provisions in the Family Law Act were outside the Terms of Reference for the Family Violence Inquiry, and therefore no recommendations were made relating to these provisions. However, the Commissions gave some limited consideration to these matters in ALRC Report 114, and make the following comments in relation to the provisions in the Exposure Draft legislation.

Removal of the friendly parent provisions of the Family Law Act

1.44 The ALRC supports the aspiration expressed in the Consultation Paper to repeal the ‘friendly parent provision’ in s 60CC(3)(c)—the section proposed to be deleted by Item 18 of the Exposure Draft legislation. In ALRC Report 114 the Commissions gave limited consideration to the operation of s 60CC(3)(c).

1.45 In ALRC Report 114, the Commissions—referring to the Chisholm Review—stated that certain provisions of the Family Law Act may impede the extent to which the court is informed about family violence. They noted that concerns have been raised about ss 60CC(3)(c) and 117AB (discussed below) in particular.^[53]

1.46 The Commissions also considered the operation of s 60CC(3)(c) where child welfare authorities are involved, and a case is referred to a federal family court—including where a parent wishes, or has been advised by child welfare authorities, to seek an order for limited or no contact with a violent or abusive parent. Due to the difficulties posed in part by the application of this section, the outcome in the family court may not be the one anticipated by the child welfare authority, and it may be an outcome that puts the child at risk.^[54]

1.47 The Commissions did not consider the operation of ss 60CC(4) and 60CC(4A)—which are dealt with in Item 20—and therefore the ALRC makes no further comments in this regard.

Removal of the mandatory cost order provision of the Family Law Act

1.48 The ALRC supports Item 37 of the Exposure Draft legislation which would repeal the mandatory cost order provision in s 117AB.

1.49 In ALRC Report 114, the Commissions noted concerns that s 117AB ‘may inhibit the disclosure of family violence in family law proceedings where a party cannot provide strong evidence of family violence to the court’.^[55] The Commissions endorsed the recommendations relating to this sectionmade in the Chisholm Review and by the Family Law Council in its report Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues.^[56]

1.50 The Chisholm Review, in particular, provides a detailed consideration of the history and operation of s 117AB. Chisholm expressed the view that due to the association of s 117AB with concerns about false allegations of violence made by women against men, it is likely that it has the effect

in some cases, of discouraging victims of violence from making true allegations, for fear that if the court does not accept the allegation, they may have to pay costs. Further, it may give the impression that the legislature has accepted the view that women’s evidence about men’s violence is inherently unreliable.^[57]

1.51 Chisholm stated that ‘the law should try to encourage people to tell the truth without making, or appearing to make, any pre-judgments’.^[58] He therefore recommended that s 117AB be repealed.^[59] The ALRC endorses this position.

1.52 The ALRC further agrees with the Consultation Paper that federal family courts have sufficient powers under s 117 of the Family Law Act to make costs orders in cases where false allegations or false denials of family violence have been made.

Immunity from costs orders for state and territory child welfare authorities

1.53 In ALRC Report 114, the Commissions made recommendations to promote the involvement of state and territory child welfare authorities in family court proceedings, including intervention in those proceedings where, for example, there is no viable and protective carer.

1.54 There are several benefits that flow from the intervention of a child welfare authority in family court proceedings, not least that the authority can provide evidence of family violence and abuse derived from its own investigations.

1.55 The Commissions recognised that, in cases in which there are allegations of child abuse, federal family courts require information from child welfare authorities to make decisions which protect children, as federal family courts do not have a mechanism to investigate allegations of abuse and violence. The Commissions noted that, due to a number of factors, ‘in some locations at least, family courts expect a response that they do not get from child protection agencies’.^[60] This leads to what the Commissions called an ‘investigatory gap’.^[61]

1.56 While the Commissions did not recommend an amendment to s 117 of the Family Law Act, the ALRC supports the proposed amendment of this section in Item 36 of the Exposure Draft legislation. The Commissions expressed the view in ALRC Report 114 that child welfare authorities should provide investigatory services in federal family court cases.^[62] Introducing cost immunity for child welfare authorities who intervene in federal family court proceedings at the request of the court, and who act in good faith, may remove a barrier to the provision of child welfare investigative services insofar as they are provided by child welfare authorities as parties to proceedings in which they have intervened.

1.57 The ALRC further considers that such a reform would complement the reforms recommended in ALRC Report 114 to promote interventions by child welfare authorities in family court proceedings, in particular:

• State governments should refer powers to enable the Australian Government to make laws allowing family courts to confer parental rights and duties on a child welfare authority in cases where there is no other viable and protective carer. Family courts should have the power to join a child welfare authority as a party in this limited class of cases.^[63]

• Where a child welfare authority investigates child abuse, locates a viable and protective carer and refers that carer to a family court to apply for a parenting order, the authority should, in appropriate cases:

1. provide written information to a family court about the reasons for the referral;
2. provide reports and other evidence; or
3. intervene in the proceedings.^[64]

1.58 We hope this has been of assistance to you. If you require any further information please do not hesitate to contact me on (02) 8238 6319 or Isabella Cosenza on (02) 8238 6316 or Sara Peel on (02) 8238 6314.

Yours sincerely,

Rosalind Croucher