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This is a Bill, not an Act. For current law, see the Acts databases.
2019-2020
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Family Law Amendment (Risk Screening
Protections) Bill 2020
No. , 2020
(Attorney-General)
A Bill for an Act to amend the
Family Law Act
1975
, and for related purposes
No. , 2020
Family Law Amendment (Risk Screening Protections) Bill 2020
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 2
Schedule 1--Amendments
3
Part 1--Main amendments
3
Family Law Act 1975
3
Part 2--Contingent amendments
10
Family Law Act 1975
10
No. , 2020
Family Law Amendment (Risk Screening Protections) Bill 2020
1
A Bill for an Act to amend the
Family Law Act
1
1975
, and for related purposes
2
The Parliament of Australia enacts:
3
1 Short title
4
This Act is the
Family Law Amendment (Risk Screening
5
Protections) Act 2020
.
6
2 Commencement
7
(1) Each provision of this Act specified in column 1 of the table
8
commences, or is taken to have commenced, in accordance with
9
column 2 of the table. Any other statement in column 2 has effect
10
according to its terms.
11
12
2
Family Law Amendment (Risk Screening Protections) Bill 2020
No. , 2020
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Part 1
The seventh day after this Act receives the
Royal Assent.
3. Schedule 1,
Part 2
The later of:
(a) immediately after the commencement of
the provisions covered by table item 2;
and
(b) immediately after the commencement of
the
Federal Circuit and Family Court of
Australia Act 2020
.
However, the provisions do not commence
at all if the event mentioned in paragraph (b)
does not occur.
Note:
This table relates only to the provisions of this Act as originally
1
enacted. It will not be amended to deal with any later amendments of
2
this Act.
3
(2) Any information in column 3 of the table is not part of this Act.
4
Information may be inserted in this column, or information in it
5
may be edited, in any published version of this Act.
6
3 Schedules
7
Legislation that is specified in a Schedule to this Act is amended or
8
repealed as set out in the applicable items in the Schedule
9
concerned, and any other item in a Schedule to this Act has effect
10
according to its terms.
11
Amendments
Schedule 1
Main amendments
Part 1
No. , 2020
Family Law Amendment (Risk Screening Protections) Bill 2020
3
Schedule 1--Amendments
1
Part 1--Main amendments
2
Family Law Act 1975
3
1 Subsection 4(1)
4
Insert:
5
family safety risk screening information
has the meaning given by
6
section 10S.
7
family safety risk screening person
has the meaning given by
8
section 10R.
9
family safety risk screening process
has the meaning given by
10
section 10T.
11
2 After Part II
12
Insert:
13
Part IIA--Family safety risk screening
14
Division 1--Preliminary
15
10Q Simplified outline of this Part
16
This Part prevents the disclosure, and admission into evidence, of
17
information that is in connection with a family safety risk
18
screening process carried out by the Family Court of Australia or
19
Federal Circuit Court of Australia in relation to a party to
20
proceedings under this Act.
21
The process is carried out for the purpose of identifying any
22
persons at risk of family violence in order to determine the urgency
23
and priority of the proceedings.
24
Schedule 1
Amendments
Part 1
Main amendments
4
Family Law Amendment (Risk Screening Protections) Bill 2020
No. , 2020
10R Definition of
family
safety risk screening person
1
A
family safety risk screening person
is:
2
(a) an officer or staff member of:
3
(i) the Family Court of Australia; or
4
(ii) the Federal Circuit Court of Australia; or
5
(b) a family counsellor; or
6
(c) a contractor engaged on behalf of a court referred to in
7
paragraph (a); or
8
(d) an officer, employee or subcontractor of a contractor referred
9
to in paragraph (c).
10
10S Definition of
family
safety risk screening information
11
(1)
Family safety risk screening information
is:
12
(a) information obtained (whether orally or in writing) or
13
generated, or a document obtained or created, by a family
14
safety risk screening person in connection with a family
15
safety risk screening process; or
16
(b) information about whether or not a party to proceedings
17
under this Act participated in a family safety risk screening
18
process.
19
(2) Without limiting subsection (1),
family safety risk screening
20
information
includes reports prepared, recommendations made or
21
referrals created by a family safety risk screening person as a result
22
of the information referred to in subsection (1).
23
10T Definition of
family safety risk screening process
24
(1) A
family safety risk screening process
is a process carried out, or
25
attempted to be carried out, by a family safety risk screening
26
person:
27
(a) in connection with proceedings under this Act; and
28
(b) in relation to a party to those proceedings;
29
for the purpose, or for purposes that include the purpose, of
30
identifying one or more of the following:
31
(c) any persons who are at risk of being subjected to family
32
violence;
33
Amendments
Schedule 1
Main amendments
Part 1
No. , 2020
Family Law Amendment (Risk Screening Protections) Bill 2020
5
(d) any children who are at risk of being subjected to, or exposed
1
to, abuse, neglect or family violence;
2
(e) any risks to the safety of persons;
3
in order to determine the urgency and priority of the proceedings
4
and assist in case management.
5
Process must involve use of risk screening tool
6
(2) The process carried out, or attempted to be carried out, must
7
involve the use of a risk screening tool determined under
8
subsection (3).
9
(3) The Chief Executive Officer may, by notifiable instrument,
10
determine a risk screening tool for the purposes of subsection (2).
11
Process may also involve risk assessment
12
(4) Without limiting subsection (1), the process referred to in that
13
subsection may also involve a risk assessment conducted by a
14
family counsellor in connection with this Part.
15
Division 2--Protection of family safety risk screening
16
information
17
10U Confidentiality of family safety risk screening information
18
(1) A family safety risk screening person must not disclose family
19
safety risk screening information, unless the disclosure is required
20
or authorised by this section.
21
(2) A family safety risk screening person must disclose family safety
22
risk screening information if that person reasonably believes the
23
disclosure is necessary for the purpose of complying with a law of
24
the Commonwealth, a State or a Territory.
25
(3) A family safety risk screening person may disclose family safety
26
risk screening information to a party to the proceedings concerned
27
if that information:
28
(a) was provided by, or generated or created from information
29
provided by, that party; and
30
(b) relates to that party.
31
Schedule 1
Amendments
Part 1
Main amendments
6
Family Law Amendment (Risk Screening Protections) Bill 2020
No. , 2020
(4) A family safety risk screening person may disclose family safety
1
risk screening information if consent to the disclosure is given by:
2
(a) if:
3
(i) the information was provided by, or generated or
4
created from information provided by, a party to the
5
proceedings concerned; and
6
(ii) the information relates to that party; and
7
(iii) that party is 18 or over;
8
that party; or
9
(b) if:
10
(i) the information was provided by, or generated or
11
created from information provided by, a party to the
12
proceedings concerned; and
13
(ii) the information relates to that party; and
14
(iii) that party is a child under 18;
15
a court.
16
(5) A family safety risk screening person may disclose family safety
17
risk screening information to another family safety risk screening
18
person for the purposes of that other person's responsibilities or
19
duties in connection with this Part.
20
(6) A family safety risk screening person may disclose family safety
21
risk screening information if that person reasonably believes that
22
the disclosure is necessary for the purpose of:
23
(a) protecting a child from the risk of harm (whether physical or
24
psychological); or
25
(b) preventing or lessening a serious and imminent threat to the
26
life or health of a person; or
27
(c) reporting the commission, or preventing the likely
28
commission, of an offence involving violence or a threat of
29
violence to a person; or
30
(d) preventing or lessening a serious and imminent threat to the
31
property of a person; or
32
(e) reporting the commission, or preventing the likely
33
commission, of an offence involving intentional damage to
34
property, or a threat of damage to property, of a person; or
35
(f) if a lawyer independently represents a child's interests under
36
an order under section 68L--assisting the lawyer to do so
37
properly.
38
Amendments
Schedule 1
Main amendments
Part 1
No. , 2020
Family Law Amendment (Risk Screening Protections) Bill 2020
7
(7) A family safety risk screening person may disclose family safety
1
risk screening information in order to provide information (other
2
than personal information within the meaning of section 6 of the
3
Privacy Act 1988
) for research relevant to families.
4
(8) Evidence that would be inadmissible because of section 10V is not
5
admissible merely because this section requires or authorises its
6
disclosure.
7
Note:
This means that a family safety risk screening person's evidence is
8
inadmissible in court, even if subsection (2), (3), (4), (5), (6) or (7)
9
requires or authorises the person to disclose it in other circumstances.
10
10V Admissibility of family safety risk screening information etc.
11
Family safety risk screening information
12
(1) Family safety risk screening information is not admissible:
13
(a) in any court (whether or not exercising federal jurisdiction);
14
or
15
(b) in any proceedings before a person authorised to hear
16
evidence (whether the person is authorised by a law of the
17
Commonwealth, a State or a Territory, or by the consent of
18
the parties).
19
(2) Subsection (1) does not apply to family safety risk screening
20
information that indicates that a child under 18 has been abused or
21
is at risk of abuse, unless, in the opinion of the court, there is
22
sufficient evidence of the information available to the court from
23
other sources.
24
Evidence of things said or admissions made in company of
25
professionals
26
(3) Evidence of anything said, or any admission made, by or in the
27
company of a person (the
professional
) to whom a family safety
28
risk screening person refers a party to the proceedings concerned
29
(the
referred party
) for medical or other professional services,
30
while that professional is providing such services to the referred
31
party, is not admissible:
32
(a) in any court (whether or not exercising federal jurisdiction);
33
or
34
Schedule 1
Amendments
Part 1
Main amendments
8
Family Law Amendment (Risk Screening Protections) Bill 2020
No. , 2020
(b) in any proceedings before a person authorised to hear
1
evidence (whether the person is authorised by a law of the
2
Commonwealth, a State or a Territory, or by the consent of
3
the parties).
4
(4) Subsection (3) does not apply to a thing said or an admission made
5
by the referred party (including a child under 18) indicating that a
6
child under 18 has been abused or is at risk of abuse, unless, in the
7
opinion of the court, there is sufficient evidence of the thing said,
8
or the admission made, available to the court from other sources.
9
Professional to be informed of effect of section
10
(5) A family safety risk screening person who refers a party to a
11
professional (within the meaning of subsection (3)) must inform
12
the professional of the effect of this section.
13
10W Immunity of family safety risk screening persons
14
A family safety risk screening person has, in performing that
15
person's functions as a family safety risk screening person, the
16
same protection and immunity as a Judge of the Family Court has
17
in performing the functions of a Judge.
18
3 Application provisions
19
(1)
Section 10U of the
Family Law Act 1975
, as inserted by this Schedule,
20
applies in relation to the disclosure of family safety risk screening
21
information on or after the commencement of this item, whether that
22
information was obtained, generated or created before, on or after that
23
commencement.
24
(2)
Subsection 10V(1) of the
Family Law Act 1975
, as inserted by this
25
Schedule, applies in relation to the admissibility, on or after the
26
commencement of this item, in any proceedings of family safety risk
27
screening information, whether:
28
(a) that information was obtained, generated or created before,
29
on or after that commencement; and
30
(b) those proceedings were instituted on or after that
31
commencement or were pending immediately before that
32
commencement.
33
Amendments
Schedule 1
Main amendments
Part 1
No. , 2020
Family Law Amendment (Risk Screening Protections) Bill 2020
9
(3)
Subsection 10V(3) of the
Family Law Act 1975
, as inserted by this
1
Schedule, applies in relation to the admissibility, on or after the
2
commencement of this item, in any proceedings of a thing said or an
3
admission made, whether:
4
(a) the thing was said or the admission was made before, on or
5
after that commencement; and
6
(b) those proceedings were instituted on or after that
7
commencement or were pending immediately before that
8
commencement.
9
(4)
Section 10W of the
Family Law Act 1975
, as inserted by this Schedule,
10
applies in relation to the performance of functions of a family safety
11
risk screening person on or after the commencement of this item.
12
Schedule 1
Amendments
Part 2
Contingent amendments
10
Family Law Amendment (Risk Screening Protections) Bill 2020
No. , 2020
Part 2--Contingent amendments
1
Family Law Act 1975
2
4 Section 10Q
3
Omit "Family Court of Australia or Federal Circuit Court of Australia",
4
substitute "Federal Circuit and Family Court of Australia (Division 1)
5
or Federal Circuit and Family Court of Australia (Division 2)".
6
5 Subparagraphs 10R(a)(i) and (ii)
7
Repeal the subparagraphs, substitute:
8
(i) the Federal Circuit and Family Court of Australia
9
(Division 1); or
10
(ii) the Federal Circuit and Family Court of Australia
11
(Division 2); or
12
6 Section 10W
13
Omit "Family Court", substitute "Federal Circuit and Family Court of
14
Australia (Division 1)".
15