The Sharing of Experts Reports Between the Child Protection System and the Family Law System

THE SHARING OF EXPERTS’ REPORTSBETWEEN THE CHILD PROTECTION SYSTEMAND THE FAMILY LAW SYSTEM

A REPORT BY PROFESSOR RICHARD CHISHOLM AM

FOR THE ATTORNEY-GENERAL’S DEPARTMENT

Canberra, March 2014

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Contents

List of Recommendations

Recommendation 1: Review of Family Law Act s 121

Recommendation 2: Review of certain provisions prohibiting publication of children’s court proceedings

Recommendation 3: Review of certain provisions prohibiting the disclosure of information obtained while administering the Child Protection legislation

Recommendation 4: Sharing of experts’ reports generally

Recommendation 5: Legislative encouragement of information-sharing

Recommendation 6: Rules of court to specify permissible disclosure

Recommendation 7: Amending rules of court so they explicitly enable courts to authorise disclosure of reports to the family law or child welfare systems, and to legal aid bodies

Recommendation 8: Model court orders releasing reports in parenting proceedings, and notices accompanying such reports

Recommendation 9: Education and training

Recommendation 10: Measures to measure awareness of relevant experts’ reports

Recommendation 11: Increasing knowledge of law relating to permissible sharing of experts’ reports

Part 1: Preliminary

Background

Defining the task

Terms of Reference

‘The federal family law system’

‘The child protection system’

‘Experts’ reports’

Experts’ reports in the family law system

Experts’ reports in the child protection system

Certain reports not ‘expert’s reports’

Structure of this report

Limited evidentiary basis of this report

Task Force members

Acknowledgments

Part 2: Advantages and disadvantages of sharing experts’ reports

Introduction

Advantages of sharing experts’ reports

Much expert evidence is important for decisions about children in each system

Promoting informed decision-making

Avoiding unnecessary interviews and inquiries

Possible disadvantages of sharing experts’ reports

Privacy and safety

Dangers of flawed or incomplete experts’ reports

Possible misunderstandings of experts’ reports when used in a different context

Might decision-makers give undue weight to experts’ reports?

Possible workload implications for family consultants

Considerable sharing of experts’ reports under current practice

Conclusion

Part 3: When is it lawful to share experts’ reports?

Introduction

Information-sharing lawful unless prohibited by some identifiable rule

Court orders often determine the permissibility of sharing experts’ reports

Legislative prohibition on disclosures to the public: section 121 of the Family Law Act and equivalent provisions of state and territory legislation

Section 121 of the Family Law Act

Prohibition of publishing details of cases: child protection equivalents of s 121 of the Family Law Act

Conclusions

Individual parties’ experts’ reports

Other parties to the litigation not permitted to disclose an individually commissioned expert’s report without court’s permission: the Harman principle

Experts’ reports commissioned by the family courts and the children’s courts

Family consultants’ reports in the family courts

Single experts’ reports in the family courts

Experts’ reports commissioned by the children’s courts

Summary: permissible sharing of experts’ reports in the children’s courts

Experts’ reports held by the child protection authorities

Introduction

Provisions that criminalise disclosing information obtained while administering the child protection legislation

Summary

The prohibition against disclosure of information obtained in administering state and territory Child Protection legislation: comments and recommendation

Recommendation 3: Review of certain provisions prohibiting the disclosure of information obtained while administering the Child Protection legislation

Permissible disclosure of experts’ reports: summary and conclusions

Recommendation 4: Sharing of experts’ reports generally

Recommendation 5: Legislative encouragement of information-sharing

Part 4: Some practical issues and recommendations

Introduction

Regulating the disclosure of experts’ reports provided to the courts

The first approach: amending the rules to specify those to whom the reports may be disclosed

The second approach: using precedents to crease a measure of consistency in making orders for the release of experts’ reports

The third approach: use of notices to accompany reports when released to the parties

Current proposals in the Federal Circuit Court of Australia

The Federal Circuit Court’s proposed rule amendment

Rule 23.01A Family reports

The Federal Circuit Court’s proposed model order when ordering a family report

The Federal Circuit Court’s proposed notice accompanying family reports

NOTICE TO PERSON RECEIVING COPIES OF THIS REPORT.

The Federal Circuit Court of Australia proposals: summary and comment

Recommendation 6: Rules of court to specify permissible disclosure

Recommendation 7: Amending rules of court so they explicitly enable courts to authorise disclosure of reports to the family law or child welfare systems, and to legal aid bodies

Legal aid bodies or independent children’s lawyers?

Professionalism rather than detailed regulation may be the best way to avoid risks associated with information-sharing

Promoting the sharing of experts’ reports

Ensuring awareness of the potential value of expert reports in the other system

Recommendation 9: Education and training

Ensuring awareness of the existence of an expert’s report in the other system in a particular case

Recommendation 10: Measures to measure awareness of relevant experts’ reports

Promoting understanding about the extent of legally permissible sharing of experts’ reports

Recommendation 11: Increasing knowledge of law relating to permissible sharing of experts’ reports

Attachment 1: Background to collaboration project

Attachment 2: Extracts from the information-sharing report of 2013

Executive Summary

List of Recommendations

Law Reform Issues (Chapter 3)

Formal Information-Sharing Agreements: General Matters (Chapter 4)

Formal Information-Sharing Agreements: Specific Matters (Chapter 6)

The Family Courts Requiring Information: Subpoenas and Section 69ZW Orders

Child Protection Intervening in Family Court Proceedings: Section 91B

Child Protection Referring Clients to Family Courts

Independent Children’s Lawyers

Recovery Orders

Future Developments: Family Violence

Model Information-Sharing Agreement

Title

Information-sharing Agreement between the family Court of Australia, the federal Magistrates Court, Child protection and Legal Aid

Purpose

Principles

Communication between the parties

Child Abuse Notices (s 67Z and 67ZA)

Family Court orders requesting information from Child protection

Subpoenas and family Court orders requiring information (s 69Zw)

Requests for Child protection to intervene in family court proceedings (s91B)

Recovery orders

Referral of person to a family court

Independent Children’s Lawyers

Encouragement of informal collaboration

Education and training

Implementation of this agreement

Attachment 2

Notes to Model Agreement

General

Title

Parties, purpose and principles

Child Abuse Notices (s 67Z and 67ZA)

Family Court orders requesting information from Child protection

Subpoenas and family Court orders requiring information (s 69Zw)

Requests for Child protection to intervene in family court proceedings (s91B)

Education and training

Encouragement of informal collaboration

Independent Children’s Lawyers

Review and amendment of the agreement

An alternative drafting option: standardised information-sharing provisions

List of Recommendations

Recommendation 1: Review of Family Law Act s 121

The Commonwealth should review the wording of s 121 and consider the desirability of anamendment that would, to remove doubt, state explicitly that it does not apply to the provisionof information to the child protection system.

Recommendation 2: Review of certain provisions prohibiting publication ofchildren’scourt proceedings

State and territory legislatures should where necessary ensure that any provision in their childprotection legislation designed to prevent publication of children’s court cases to the public isworded so that it does not forbid the sharing of experts’ reports in children’s court cases with thefamily law system. In particular, the following provisions should be reviewed: Children’s ProtectionAct 1993 (SA), s 59A; Child Protection Act 1999 (Qld) s 192; Care and Protection of Children Act (NT) s 97.

Recommendation 3: Review of certain provisions prohibiting the disclosure ofinformation obtained while administering the Child Protection legislation

State and territory legislatures should urgently review the provisions in child protection legislationthat prohibit disclosure of information gained in administering the legislation to ensure that theydo not forbid the sharing of experts’ reports held by the child protection authority or the children’scourts in children’s cases with the family law system. [Those provisions are Children, Youth andFamilies Act 2005 (Vic) ss 205, 206; Child Protection Act 1999 (Qld), s 187; Children’s ProtectionAct 1993 (SA), s 58; Children and Community Services Act 2004 (WA), ss 139, 141; Children, YoungPersons and Their Families Act 1997 (Tas), s 103; Children and Young People Act 2008 (ACT),especially ss 846, 865; Care and Protection of Children Act (NT) s 195.]

Recommendation 4: Sharing of experts’ reports generally

(1) The recommendations for information-sharing between the family law system and the childprotection system contained in the Information-Sharing Report should be treated as generallyapplicable to experts’ reports where such sharing is clearly permitted by law.

(2) Having regard to the state of the law at the date of this report, the following arrangementsshould be made for the sharing of experts’ reports between the family courts and independentchildren’s lawyers (the family law system), legal aid commissions, and children’s courts andchild protection authorities (the child protection system):

• experts’ reports provided to a family court or a children’s court should be shared with theother system when such sharing is authorised by legislation or by court orders; and

• experts’ reports prepared for the child protection authorities and not filed in court shouldbe shared unless such sharing is prohibited under the relevant state or territory childprotection legislation.

(3) Responsible authorities in the family law and child protection systems should consider whethersharing arrangements might usefully be extended to include

• individually commissioned experts’ reports in the family courts or the children’s courtswhere the commissioning party consents to the sharing, and

• experts’ reports that have been admitted into evidence in the family courts or thechildren’s courtseven where the sharing of such reports is not specifically authorised by legislation orcourt orders.

Recommendation 5: Legislative encouragement of information-sharing

State and territory legislatures other than New South Wales78 should consider passing legislationthat positively authorises, encourages or requires the child protection to share experts’ reports withthe family law system in appropriate circumstances.

Recommendation 6: Rules of court to specify permissible disclosure

Consideration should be given to amending the Rules of Court applicable to the family courts andthe children’s courts so that they clearly specify the persons to whom reports may and may not bedisclosed where the question is not determined by orders of the court.

The following formulation might be considered as a starting point when drafting such provisions:

• A copy of a family consultant’s report may be given to any person that the court has authorised toreceive it.

• [For the family courts] Unless the court otherwise orders, a copy of an experts’ report may be givento a child protection authority; a children’s court; and a State or Territory legal aid commission foruse in connection with family dispute resolution or child protection mediation or an application forlegal aid relating to family court proceedings.

• [For the children’s courts] Unless the court otherwise orders, a copy of an experts’ report may begiven to a family court, an independent children’s lawyer appointed by a family court, and a State orTerritory legal aid commission for use in connection with family law proceedings or an applicationfor legal aid relating to family court proceedings.

• A copy of a family consultant’s report may not be given to any other person without thecourt’s permission.

If such an amendment is made, the relevant procedures should be such as to ensure that theparties have an opportunity to make submissions about the extent to which disclosure will bepermitted in their particular case.

Recommendation 7: Amending rules of court so they explicitly enable courts toauthorise disclosure of reports to the family law or child welfare systems, and tolegal aid bodies

Rec 7.1 If the rules are not to specify directly to whom reports may and may and may not bedisclosed, they should be amended to make it explicit that family courts can make orders allowingthe disclosure of reports to appropriate bodies in the child protection system, and to legal aidbodies. The proposals under consideration by the Federal Circuit Court, set out above, would be avaluable starting point in the formulation of such rules.

Rec 7.2 Similarly, rules relating to the children’s court should make it explicit that children’s courtscan make orders allowing the disclosure of reports to appropriate bodies in the family law system,and to legal aid bodies.

Recommendation 8: Model court orders releasing reports in parenting proceedings,and notices accompanying such reports

Rec 8.1 The family courts should develop model court orders providing for appropriate disclosureof experts’ reports to the child protection system.

Rec 8.2 The family courts should publish notices attached to experts’ reports when released tothe parties. Such notices should refer to s 121 of the Family Law Act and to other matters relevantto the proper use of such reports, for example by pointing out that the report may not have beenadmitted into evidence and may not have been accepted by the court, and that the issues may beaffected by information that was not available to the writer of the report.

Rec 8.3 The proposals being considered by the Federal Circuit Court of Australia provide anexcellent starting-point for drafting such model orders and notices.

Rec 8.4 In Hague child abduction proceedings, the model orders should include clauses to theeffect that copies of the report may be given to• the Australian Central Authority and its legal advisors;

• The Overseas Central Authority; and

• The requesting parent or any other person on whose behalf the Central Authority has madethe application and any lawyer or legal representative or other professional engaged on therequesting parent’s behalf in relation to this application.

Recommendation 9: Education and training

Each system should establish appropriate education and training to ensure that its personnel areaware of the potential benefits of experts’ reports held by the other system. This could include:

(a) hosting training by personnel in the other system on the types, nature and purpose ofreports used in their system;

(b) including guidance in internal training documents;

(d) publishing relevant material on the collaboration website established by theCommonwealth Attorney-General’s Department.

Recommendation 10: Measures to measure awareness of relevant experts’ reports

Formal and informal procedures established for information-sharing between the family lawand child protection systems should include measures to ensure that personnel in each systemcan readily learn whether there is a relevant expert report held by the other system. Suchmeasures include:

(a) placing appropriate provisions in written agreements between stakeholders to facilitateenquires about the existence of experts’ reports in the other system;

(b) considering the sharing of experts’ reports through the Commonwealth Courts Portal;

(c) implementing appropriate information technology procedures for information-sharing(for example, dedicated email boxes); and

(d) ensuring that procedures for sharing are widely known, for example, placing suchprocedures on the collaboration website established by the Commonwealth Attorney-General’s Department.

Recommendation 11: Increasing knowledge of law relating to permissible sharing ofexperts’ reports

The family law and child protection systems should ensure as far as practicable that theirpersonnel understand the extent to which the law permits experts’ reports to be shared betweenthe two systems. This could be facilitated through:

(a) directing personnel to this report, the Information Sharing Report and otherrelevant material on the collaboration website established by the CommonwealthAttorney-General’s Department; and

(b) creating or updating internal training manuals to include such information.

Part 1: Preliminary: Preliminary

Background

In March 2013 the Attorney-General’s Department published the report Information-Sharing inFamily Law & Child Protection: Enhancing Collaboration (here referred to as the Information-SharingReport).[1]That report formed part of collaborative work on a project that had been initiated in 2010and continues today (see Attachment 1). The project includes the aim of ensuring that informationrelevant to decisions about children is appropriately shared between the family law system, thestate and territory child protection system (‘Child Protection’), and the legal aid commissions andindependent children’s lawyers. Following a meeting on 24 May 2013, the Department consideredthat it would be useful to review in more detail the question of sharing experts’ reports, andappointed a Task Force to assist me in the preparation of this report.

Accordingly, this report is essentially a supplement to the Information-Sharing Report. Experts’reports are one instance of information that can usefully be shared between the systems, and ingeneral the recommendations made in that report apply as much to them as to other information.But some features of experts’ reports require special consideration, and these form the focus ofthis report.

Defining the task

Terms of Reference

The Terms of Reference for the Task Force are as follows:

1. The Taskforce is to inquire into and assist Professor Richard Chisholm in his preparation of a reporton the sharing of experts’ reports between the state and territory child protection systems and thefederal family law system, in particular:

(a) Identifying the legal and practical impediments and issues related to the sharing of experts’reports between the child protection and family law systems.