Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

I do thank the member for Goldstein her proposed amendment and for her engagement on these important family law reforms. With respect to the member for Goldstein, the government has formed a different view. The member for Goldstein correctly points out that this was the subject of the exposure draft, but debate generally on this measure shows what a difficult exercise it is in balancing competing interests. In some instances, while disclosure would be distressing, the information that's contained in a party's sensitive therapeutic records will nevertheless be highly relevant to the best interests of a child involved in the proceedings.

Just to give an idea of administrative or procedural scale that we are dealing with: over 61,500 subpoenas were issued in family law proceedings in the last financial year. Many of those subpoenas relate to sensitive therapeutic records. The creation of a presumption of inadmissibility could prevent the court from considering critical information relating to a child's safety and best interests in matters where an application for leave is not made. We've had extensive consultation on this, including two exposure drafts of legislative provisions. The approach that we've adopted makes an additional safeguard available to protect vulnerable parties from harm where it's appropriate while prioritising a decision-maker having all information relevant to the safety and best interests of children at their disposal.

Judges will be able to weigh considerations of the potential harm that adducing evidence may cause a person against its probative value in a matter, with the best interests of any children involved as the paramount consideration. The government's view is that this is an appropriate starting point and a step forward to enhance protections against the misuse of evidentiary provisions in family law matters, a risk of which we are acutely aware. The bill includes a statutory review mechanism, three years after commencement, which will enable consideration of the need for any improvements. In addition, I expect the bill will be referred to a committee in the other place for inquiry, but the government will not be supporting the amendment moved by the member for Goldstein in the House.

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