What are the changes?
As part of the amendments to the Family Law Act 1975 which commenced on 6 May 2024, the new Family Law Amendment (Information Sharing) Act 2023 sets out new laws for the Courts to obtain information about family violence, child abuse or neglect from child protection, police and firearms agencies.
The changes provide the Courts with stronger powers to request information about risks to family safety, thereby enhancing their ability to make decisions that are in the best interests of the child. They apply to both new and existing cases in the Court and orders can be issued at any time, including during a final hearing.
The new legislation repeals section 69ZW and expands the scope of information that can be requested. Previously, only information concerning family violence and child abuse could be provided. Sections 67ZBD and 67ZBE now empower the Court require an “information sharing agency” to provide particulars or documents about the following matters:
- Abuse, neglect, or family violence to which a child has been (or is suspected to have been) exposed;
- Family violence to which a party has been exposed, or in which a party has engaged;
- Risk of exposure of a child to family violence, abuse, or neglect; and
- Risk of exposure of a party to family violence.
The types of documents and information which may be provided will include:
- Documents (including criminal histories and police records) disclosing a history of family violence, child abuse or risk of abuse or other violent offences;
- Records of open, ongoing or current interventions by child protection agencies; and
- Documents containing information about firearms licensing and applications.
The agencies covered by the legislation include the Police and the agency responsible for child protection. For NSW, this is the Department of Communities and Justice.
How will the information be protected?
The information to be provided under this new legislation will no doubt be sensitive. As such, the legislation contains a number of safeguards.
For example, information sharing agencies must consider declining to produce the documents/information, or redacting it, if the information:
- Is protected by legal professional privilege;
- May reveal the identify of a person who made a report to the relevant agency;
- May present an unreasonable risk of harm to a person’s life;
- Prejudice ongoing legal proceedings;
- Contravene a court order or law that would restrict the publication or other disclosure in connection with a legal proceeding; or
- Be contrary to the public interest.
How will the information be used?
Once provided, the legal representatives for both parties will be permitted to view the documents. If the Court intends to rely on the document/information in making a decision, it must admit it into evidence.
If an information sharing order has already been made, a party cannot then, without the Court’s leave, issue a subpoena to that same agency requesting information.