Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

by leave—I move amendments (1) to (3) as circulated in my name together:

(1) Schedule 3, item 30, page 72 (lines 7 to 8), omit the definition of disclosure requirement in subsection 4(1).

(2) Schedule 3, item 31, page 73 (line 28) to page 78 (line 5), omit sections 102BC to 102BG, substitute:

102BC Admissibility of evidence of protected confidence

Admissibility of evidence of protected confidence

(1) Except with the leave of the court under section 102BD, evidence that would disclose any of the following is not admissible in proceedings under this Act:

(a) a protected confidence; or

(b) the contents of a document recording or relating to a protected confidence.

Consent by protected confider

(2) Evidence is not inadmissible because of subsection (1) if:

(a) consent to the evidence being admitted in the proceedings is given by:

(i) if the protected confider is 18 or over—the protected confider; or

(ii) if the protected confider is a child under 18:

(A) each person who has parental responsibility (within the meaning of Part VII) for the child; or

(B) an independent children's lawyer who represents the interests of the child in the proceedings; or

(C) a person who has care of the child; or

(D) a person who proposes to have parental responsibility for the child; and

(b) before giving consent, the person is provided with independent legal advice from a legal practitioner; and

(c) the consent is in writing and witnessed by an independent person who is 18 years of age or over and not party to the proceedings.

Relationship with inadmissibility provisions

(3) Subsection (1) does not apply in relation to evidence to which any of the following provisions apply:

(a) section 10E (admissibility of communications in family counselling and in referrals from family counselling);

(b) section 10J (admissibility of communications in family dispute resolution and in referrals from family dispute resolution);

(c) section 10V (admissibility of family safety risk screening information etc.).

102BD Leave to admit evidence of protected confidence

(1) In deciding for the purposes of section 102BC whether to grant leave to admit evidence in proceedings, the court must determine whether the public interest in admitting the evidence outweighs the public interest in preventing harm to:

(a) the protected confider, or a person about whom or on whose behalf the protected confidence was made; or

(b) the relationship in the course of which the protected confidence was made or relationships of that kind generally.

(2) In making a decision under subsection (1) in proceedings under Part VII, the court must regard the best interests of the child as the paramount consideration.

(3) In making a decision under subsection (1), the court must have regard to the following matters:

(a) the probative value of the evidence in the proceedings;

(b) its importance of the evidence in the proceedings;

(c) the availability of other evidence concerning the matters to which the evidence relates;

(d) the likely effect of admitting the evidence, including the likelihood of harm, and the nature and extent of harm, that would or might be caused:

(i) to the protected confider; or

(ii) to a child to which the proceedings relate;

(e) the means available to the court to limit the harm or extent of the harm likely to be caused if the evidence is admitted;

(f) whether the substance of the evidence has already been disclosed by the protected confider or any other person;

(g) the public interest in preserving the confidentiality of protected confidences.

(4) Subsection (3) does not limit the matters to which the court may have regard in making the decision.

(5) The court must give reasons for making a decision whether to grant leave to admit evidence in proceedings under this Division.

(3) Schedule 3, item 33, page 78 (line 17), omit "102BF(b)", substitute "102BC(3)(b)".

My amendments concern protected confidences in family court proceedings and are designed to prevent victims-survivors of domestic and family violence from experiencing further harm. My amendments don't come out of left field. In fact, they almost made it into law. Draft amendments in relation to protected confidences were included in an exposure draft of the Family Law Amendment Bill last year. These amendments would have made documents, such as medical and counselling records, unable to be admitted in evidence without legal support or the consent of the protected confider or, in the case of a child, the consent of those who have parental responsibility for the child. This measure placed the onus on the person seeking to admit the evidence, rather than on the protected confider, to seek leave to have a record of this type admitted in evidence.

My amendments are along the lines of the 2023 exposure draft.

They flip the burden so that the default is that the evidence is not admissible unless leave is given. My amendments put the onus on the person seeking to admit the evidence or issue a subpoena to seek leave, not the protected confider. This primarily requires changes to section 102BC and 102BD of the bill. They provide enhanced safeguards to ensure protected confiders are giving specific and informed consent for the evidence to be admitted or documents to be disclosed, inspected or copied.

The disclosure of protected confidences can be harmful to victim-survivors who are trying to rebuild their lives. That's because information becomes a weapon in the hands of domestic violence perpetrators. Allowing confidential documents in trial processes can provide perpetrators with additional means to cause harm to victims and further disrupt the mother and child relationship. Victim-survivors should be able to consent to the release of their protected confidences provided there are safeguards ensuring this is done with their informed consent, including access to legal advice prior to giving consent and that consent being provided in writing.

With the Family Law Amendment Bill 2024, there's no requirement that a party seek leave before issuing a subpoena and the onus is now on the protected confider to make an application to prevent disclosure of their records. I note that these changes were made in response to concerns from some in legal circles that the initial exposure draft would delay matters, increase costs for parties and take up court resources. In some cases, information sharing will lead to more timely outcomes; however, an increase in information will not address the root cause of delays, which is often legal systems abuse. These delays are caused by vexatious former partners who prolong litigation to waste the resources of the other party by refusing to sign legal documents and failing to attend meetings or court dates. If the legal profession is serious about cracking down on these delays, it should tackle systems abuse.

Another counter view is that in some cases these records are important in determining the risk the mother poses in the best interest of the child. But counselling records aren't the only way to determine this. There are other ways the court can receive information about what's in the child's best interest, including police reports, child protection and both parties' own evidence. Placing the onus on the protected confider means that victim-survivors will continue to be harmed. They'll potentially be unaware of their responsibility to even make an application to prevent disclosure of confidential information or won't have the ability to make an application due to limited access to free legal advice and presentation. We know that, due to the lack of capacity in the community legal system, getting legal assistance is very difficult. I note that these amendments were formulated with the expert assistance of the women's legal sector. This is what the sector wants.

The family law system must allow victim-parents the best possible opportunity to recover without further incursions on the capacity to care for their children. I urge the government to consider accepting this amendment.

Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Link to 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.

Zoe Daniel (Goldstein, Independent) Share this | Link to this | Hansard source

I have two points of clarification for the minister. Given that, in the 2023-24 financial year, 83 per cent of applications for parenting or parenting-and-property related orders filed in the Federal Circuit and Family Court contained allegations of family violence, why should a further burden be placed on victims-survivors to prevent the disclosure of their confidential records? Further to that, given the lack of capacity in the community legal system, how will victims-survivors be made aware of this responsibility, given we know that up to a thousand a week are currently being turned away from free legal advice?

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

As I've said, the fact that we're having this debate is a real demonstration of the difficult exercise in balancing the quite self-evident competing interests here, but the amendment that the member for Goldstein has moved would impose obligations on those issuing subpoenas or seeking to have documents produced to them, which would greatly increase the administrative burden on the court and on parties. That is why we've opted for the setting that appears in the bill that's now before this House. As I've said, there will be an opportunity for further examination in a committee in the other place and there will be an opportunity for review of this in three years time. We've struck a balance that we think is appropriate.

In answer to the question raised by the member for Goldstein as to how parties will be aware, on something like this the court will make sure that parties are aware. I appreciate there is a problem about not every party in the court receiving legal advice, but the court is already highly sensitive to the problems, intrusion and distress that can be caused by the subpoenaing of therapeutic records. It's a matter on which the court is already fully engaged, and I would expect it will continue to be.

Question negatived.

Bill agreed to.

Ordered that this bill be reported to the House without amendment.