Chapter 3: Impact of Part 5A on victim survivors

Introduction

The Family Violence Protection Act 2008 (Vic) (the Act) aims to maximise victim survivor safety, prevent and reduce family violence to the greatest extent possible and hold perpetrators accountable for their actions.¹ Victim survivors are key intended beneficiaries under the Act, including the information sharing reforms in Part 5A. These reforms were introduced to “allow greater access to relevant information to better protect victims and hold perpetrators to account”.²

This chapter looks at the impact of the provisions in Part 5A on victim survivors, both from the perspective of survivor advocates and, where relevant, information sharing entities (ISEs) that work to support victim survivors. It addresses the impact of the Act on victim survivor reluctance to share information, the application of the consent provisions for disclosing victim survivor information, and survivor advocates’ experiences of information about perpetrators being shared with them. This chapter also discusses the interaction between Part 5A and general privacy laws, including the obligation on ISEs to inform victim survivors about Part 5A when collecting their information, and the ability of ISEs to share information with consent to reduce victim survivor trauma. Additional views and experiences shared by survivor advocates are also highlighted at the end of this chapter.

Survivor advocates’ views and experiences related to the Family Violence Multi-Agency Risk Assessment and Risk Management (MARAM) Framework are highlighted in Chapter 6.

We are enormously grateful to the survivor advocates who spoke to us; they generously shared their time, experiences and views. They have greatly enhanced our knowledge and represented many different circumstances. However, it is important to recognise that the survivor advocates we spoke to represent a fraction of all victim survivors in Victoria. Therefore, we also acknowledge the many victim survivors who have not had the opportunity to take part and who may hold other views.

Victim survivor reluctance to share information

Victim survivors are apprehensive about sharing their confidential information with services; however, the introduction of Part 5A has not increased their concerns about information sharing and they support the broader sharing of perpetrator information under Part 5A

In sharing general views and reflections about information sharing, many survivor advocates highlighted the importance of keeping their information safe to protect themselves and their children. One survivor advocate told us that, at the time of seeking services, concerns of information sharing were not on her radar because she so desperately needed help. But most survivor advocates we spoke to highlighted a general reluctance to share information with others. This was primarily due to fears about how the information they shared would be recorded and stored and who would have access to that information. Most survivor advocates told us of fears that sharing confidential information could lead to:

• police involvement
• reports being made to Child Protection
• information being reported back to the perpetrator, thereby increasing risks to their safety.

Survivor advocates also described sharing information with services without disclosing the true extent of family violence offending or disclosing information gradually once they had determined that the service provider could be trusted. One survivor advocate described her reluctance to sharing openly with service providers by explaining that victim survivors have greatly reduced circles of trust.

We reviewed the provisions and aims of Part 5A in our consultations with survivor advocates. It was pleasing to hear that survivor advocates generally support the Family Violence Information Sharing Scheme (FVISS), with no survivor advocates expressing that the scheme had a negative impact on their pre-existing views. That is, Part 5A neither eased nor exacerbated their reluctance to share confidential information with services.

This view was generally reinforced by stakeholders who work with victim survivors. Although we heard a small number of examples of clients disengaging from services due to information sharing, most stakeholders told us that victim survivor reluctance to share information has not increased since the introduction of Part 5A.

Overall, survivor advocates support the requirements under Part 5A, including the Act giving precedence to their right to safety over perpetrators’ right to privacy, and the increased ability for services to share perpetrators’ information without consent. Many survivor advocates viewed this as an important change because they believe organisations often place greater importance on perpetrators’ right to privacy over victim survivors’ right to be safe. They also described a previous imbalance in access to information, feeling that perpetrators could access victim survivors’ confidential information to use against them in court proceedings, but victim survivors could not access information about perpetrators to promote their safety. Concerns related to the use of legal processes to obtain victim survivor information are discussed further in Chapter 7.

Information sharing to promote victim survivor agency

Overview of consent provisions under Part 5A

Part 5A outlines the circumstances in which consent is, and is not, required to collect, use or disclose confidential information. General consent provisions for disclosing confidential information are shown in Table 6.³

While a child victim survivor’s confidential information can be collected, used and disclosed without their consent, Part 5A’s principles make clear the importance of promoting the agency of children by “ensuring their wishes are taken into account having regard to the appropriateness of doing so and the child’s age and maturity”.⁴

There are two exceptions to the requirement that information about adult victim survivors and third parties only be collected, used or disclosed with their consent. These are:

• when an ISE reasonably believes that the collection, use or disclosure of the confidential information is necessary to lessen or prevent a serious threat to an individual’s life, health, safety or welfare (commonly referred to as the serious threat exception)⁵
• when the collection, use or disclosure of confidential information about an adult victim survivor or third party relates to confidential information about a child victim survivor and is used for a family violence assessment or protection purpose relating to that child (which we will refer to as the protection of a child exception).⁶

The Act defines consent to mean either express or implied consent.⁷ The definition of consent in the Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (the Ministerial Guidelines) is “[p]ermission for something to happen, or agreement to do something, after being provided all relevant information”.⁸ The Act also outlines requirements for ISEs to determine whether a person has the capacity to consent based on their understanding and communication of consent.⁹

The Ministerial Guidelines include additional information about Part 5A’s consent provisions in the chapters on sharing information about perpetrators, adult victim survivors or third parties, and child victim survivors.¹⁰ A separate chapter on consent is dedicated to describing the elements of consent, the giving, refusing and withdrawing of consent, and documenting consent.¹¹ The Ministerial Guidelines expand on what is stated in the Act, explaining that consent must be voluntary, informed, specific and current, and the person must have capacity to consent.¹² This is shown in Figure 16.

Some victim survivors are concerned that the consent provisions are not being applied such that they have agency over the sharing of their confidential information

As noted above, ISEs must generally obtain an adult victim survivor’s consent before disclosing their information. Survivor advocates provided the strongest feedback on ISEs’ application of the consent provisions for disclosing their confidential information. In this and following sections, unless otherwise noted, a reference to victim survivor consent should be read as referring to adult victim survivors only, noting that consent is not required to share child victim survivor information under Part 5A.

Adult victim survivors are concerned that ISEs infrequently obtain their informed consent to disclose their confidential information

Survivor advocates most often reflected positive experiences of consenting to an ISE sharing their confidential information when information was being disclosed as part of a referral process and meant they did not need to retell their story. In these cases, survivor advocates said service providers clearly explained the reasons for information sharing and obtained consent before sharing. One survivor advocate who told us of being referred from a specialist family violence service to a sexual assault service explained how the practitioner had a discussion with her and sought their consent for each element of information sharing, including how the information would be framed and conveyed. This allowed the survivor advocate to feel in control of her information and empowered to make their own decisions.

The same survivor advocate told us they had to explain to a different practitioner over and over the reasons why they did not want their information shared, including serious concerns that the perpetrator was accessing their confidential information when it was shared with other ISEs and increasing the risk of harm. Despite explaining the history of an ISE sharing confidential information with her perpetrator, the survivor advocate still experienced a family violence service sharing their information with that ISE contrary to her instructions.

It was concerning to hear from one survivor advocate that they had been told by a specialist family violence service that she could not receive assistance unless she gave consent for their information to be shared. The survivor advocate explained that this was reflective not only of her own experience but of other victim survivors in their support group, with consent to the sharing of confidential information bundled together with other matters that victim survivors must agree to in order to use the service and receive assistance.

In discussing consent with survivor advocates, they expressed the following views:

• Services must have proactive discussions with victim survivors in which practitioners clearly explain who victim survivors’ confidential information will be shared with, the reason for the sharing, what rights and options victim survivors have for their information being shared and possible adverse impacts of their confidential information being shared.
• Because blanket consents require victim survivors to give up too much control over their own information without the opportunity for feedback, consent should be iterative and practitioners should have a new conversation with victim survivors every time they want to share information.

Survivor advocates were anxious about their confidential information being shared without their consent, and about not being informed when their information was shared. One survivor advocate who shared both positive and negative experiences of how ISEs shared their confidential information told us that the legislation had come from a good place but the application of the FVISS needed to be further considered. In our discussions with survivor advocates, they also shared with us repeatedly that after being in relationships in which they often felt powerless and in which another person attempted to or did control their decision making, it was critical that they retain the right to make their own decisions about information sharing.

One survivor advocate supported the serious threat exception to consent but emphasised the need for ISEs to actively seek consent from victim survivors when possible. Another survivor advocate agreed that confidential information about adult victim survivors should be able to be shared without their consent where necessary to protect children. However, she strongly believed that any adult victim survivors or protective parent in the child’s life should be notified about the sharing.

It was promising that most ISEs we consulted agreed in principle with the survivor advocates’ views. They recognised the importance of obtaining consent before disclosing victim survivors’ information. For example, inTouch Multicultural Centre Against Family Violence shared:¹³

[A]s is appropriate, inTouch case managers continue to seek client consent when sharing information with other agencies – and that most times this consent is granted. Case managers continue to uphold client confidentiality very seriously and use robust systems and processes when there is a requirement to share information with other agencies or workers, and where seeking client consent is not appropriate or possible.

However, it also seems that under certain circumstances, ISEs will use the consent exceptions quite broadly. For example, we heard that the serious threat exception is used by some ISEs that request perpetrator information from the Central Information Point (CIP). We understand that practitioners at The Orange Door commonly name a victim survivor when requesting a CIP report and seek information about a perpetrator’s behaviour and history of family violence in relation to that victim survivor. This is often done using the serious threat exception rather than with the victim survivor’s consent, noting that our understanding is that CIP reports are often requested at the time of referral (most often by Victoria Police), before any engagement with the victim survivor.

Victim survivors had mixed views on Part 5A’s provisions for sharing the confidential information of children without consent

The survivor advocates we spoke with who experienced family violence as children understood why it may be important to share children’s confidential information without their consent in some situations. However, they also found it concerning that children’s consent to share information was never required. One survivor advocate said that information sharing about children without their knowledge or consent could sometimes put children at higher risk of family violence, especially when the perpetrator was a parent given the potential for the confidential information to be shared with that parent.

The adult survivor advocates we spoke to understood why Part 5A does not require consent to share a child’s confidential information. However, they expressed the view that the protective parent is in the best position to present information sharing to children and that protective parents must be included in the process.

Victim survivor agency should be promoted wherever possible

In reflecting on the views and experiences of survivor advocates, we considered whether Part 5A appropriately recognises victim survivor agency, victim survivors’ own perspectives on their safety and privacy, and how to address circumstances in which victim survivors and ISEs may have different views on whether sharing victim survivor information supports victim survivor safety.

We considered whether a new principle should be added to Part 5A to reflect that ISEs should promote adult victim survivors’ agency when exercising powers under the Act. We also considered whether the consent provisions should be amended to provide stronger support of the right for all victim survivors to determine when and how their confidential information is shared. This could include options such as removing an ISE’s ability to rely on implied consent to share information or expressly requiring consent to be obtained for each instance of information sharing.

In our view, the principles and consent provisions in Part 5A appropriately recognise the factors that should be considered as part of sharing adult and child victim survivors’ confidential information. We appreciate the serious concerns that ISEs have for the safety of victim survivors and their interest in accessing and sharing information to assess and manage risks. It is important that the Act provides services with full capacity to provide family violence–related services under the wide range of conditions and levels of risk in which services can be sought. We also acknowledge and support the principle in Part 5A that ISEs should give precedence to the right to be safe from family violence over the right to privacy,¹⁴ and recognise the need for the consent provisions to support this principle. We therefore do not recommend any amendments to the Act.

We note that the MARAM Framework’s principles include respecting the agency, dignity and intrinsic empowerment of victim survivors and the need to partner with victim survivors as active decision-making participants in risk assessment and management.¹⁵ The Ministerial Guidelines’ section on the serious threat exception also states that it is “best practice to involve victim survivors at every step of the process, wherever possible, so that the victim survivor has a clear understanding of, and confidence in, the process”.¹⁶

We endorse these views and support careful consideration of a victim survivor’s views, and promotion of victim survivor agency, in all decision making about sharing information without consent. We encourage the Victorian Government and ISEs to continue efforts to seek the views of victim survivors and to appreciate the importance of this to them as part of service provision.

ISEs are not always sharing perpetrators’ confidential information with victim survivors in a way that supports victim survivor knowledge and agency

In addition to information sharing between ISEs, the Act provides for ISEs to voluntarily share information with victim survivors.¹⁷

ISEs may disclose confidential information (other than excluded information) about a perpetrator to adult and child victim survivors for a family violence protection purpose.¹⁸ Victim survivors may only use or on-share information that has been shared with them to manage their family violence risk.¹⁹

It was concerning that survivor advocates reflected that perpetrators’ information is rarely shared with them. For example, one survivor advocate stated that she received services over a period of 12 years, both before and after the introduction of the FVISS, engaging with police, specialist family violence services, health service providers (including general practitioners) and courts. She could not think of a time when perpetrator information was ever shared with her to help her assess and manage safety risks. Other survivor advocates similarly told us that they had never received any information from ISEs about their perpetrators, had never been assisted by ISEs when trying to obtain perpetrators’ information, and did not know there was a process to obtain such information.

More than one survivor advocate told us about needing to get legal help to attempt to access information about their perpetrator relevant to family violence protection purposes (such as the perpetrator’s location), with some reflecting that services continue to focus on protecting perpetrator privacy. Another survivor advocate reflected how, if done more frequently, sharing perpetrators’ information could provide an opportunity to shift the power imbalance between victim survivors and perpetrators, noting that the level of knowledge that a perpetrator has about a victim survivor supports an ongoing power imbalance and creates an environment for ongoing emotional and psychological abuse.

Our consultations with survivor advocates who experienced family violence as children revealed similar concerns that service providers do not share information with child victim survivors and that this directly affects their ability to assess and manage risks to their safety. One of the strongest messages conveyed by two 19-year-old survivor advocates we consulted with was that information about family violence must be shared with children. They said that too often adults decide that it would be ‘too much’ for children to know what is going on but that, in fact, children need to know.

We were gratified to learn that some survivor advocates felt that information sharing with victim survivors about perpetrators to help manage their risks may be increasing. For example, survivor advocates discussed finding it difficult to learn whether family violence intervention orders (FVIOs) had been served or whether a perpetrator had been released from custody. One survivor advocate who received services before the introduction of Part 5A told us that she could not imagine information about a perpetrator being shared with a victim survivor and that being able to find out whether an FVIO had been served on their perpetrator would have made a huge difference in her safety planning for attending other ongoing court proceedings. A different survivor advocate with more recent experience of the system shared how beneficial it was when police contacted her to say they were going to serve an FVIO, allowing the survivor advocate time to ensure her children were in a safe location in case the perpetrator’s response created risk.

In considering what survivor advocates shared with us about their lack of access to perpetrator information and the need for victim survivors to have agency in assessing and managing their own safety, we considered whether ISEs should be mandated rather than allowed to share confidential information about perpetrators with victim survivors for a family violence protection purpose. While we believe this would maximise victim survivor agency when making risk protection decisions, we do not recommend this approach. We believe that removing service providers’ professional judgement would fail to recognise the role that service providers play in managing victim survivor risk by, at times, limiting what information is shared with them.

The Ministerial Guidelines currently provide a brief explanation and a case study on ISE’s sharing information with victim survivors to support them in managing their risk.²⁰ In our view, this section does not sufficiently highlight the importance of supporting victim survivor agency and decision-making through information sharing. We therefore recommend that this content be expanded to include further discussion of these matters. We consider that this should include greater integration of content included in the MARAM Framework policy document’s discussion of structured professional judgement, victim survivor’s self-assessment of level of risk, and victim survivor agency in decision making for family violence assessment and protection purposes.

Interaction between Part 5A and other privacy laws

As previously noted, Part 5A of the Act operates within the context of Victoria’s broader privacy regime. This means that some sharing of family violence information may occur under other laws.²¹ This may include, for example, information sharing in accordance with the Information Privacy Principles and the Health Privacy Principles (collectively referred to as the Privacy Principles in this section).²²

Some of the key issues raised in our consultations with survivor advocates related to the application of these broader laws to family violence information. Our discussions revealed two key concerns related to:

• victim survivors’ limited knowledge of the FVISS when ISEs were collecting their information, noting the extreme stress they were under when engaging with services
• the need to reduce victim survivor trauma through confidential information sharing.

Although these issues do not stem from the legal provisions in Part 5A, they were relevant to our consideration of potential legislative amendments that could improve Part 5A’s operation. Each of these issues is discussed below.

It is important that victim survivors understand how their information may be used under the FVISS, noting that adult survivor advocates described experiencing extreme stress when engaging with services that affected their capacity to think clearly

Under the Privacy Principles, an organisation that collects personal or health information from an individual must take reasonable steps to ensure the person is aware of certain matters such as:²³

• the purposes for which the information is collected
• the types of individuals or organisations to which the organisation usually discloses that kind of information.

For many victim survivors, confidential information related to family violence may be collected by an ISE from the point of their first engagement. In line with the Privacy Principles, we consider that an ISE is required in such circumstances to take reasonable steps to ensure the victim survivor is aware of when, and to whom, their confidential information may be disclosed under the FVISS. This should include informing victim survivors that their information may, or in some cases must, be disclosed without their consent under either the serious threat or the protection of a child exception.

In our view, it is important for ISEs to not only inform victim survivors about the FVISS but also to ensure victim survivors understand the information provided to them. This is necessary to support victim survivor agency and empower victim survivors to make an informed decision about what information to share with an ISE.

In ensuring that victim survivors have a full understanding of the FVISS, it is important for ISEs to also consider the stress that victim survivors may be under when engaging with services. We heard that engaging with service providers can be an extremely daunting and overwhelming process for victim survivors, with some describing this as a time of crisis, even when voluntarily seeking support. Survivor advocates also described how the extreme stress they were under at the time impacted on their capacity to think clearly.

Most of the survivor advocates we consulted, including those who had received support and/or services from ISEs since Part 5A commenced, did not recall being told about the FVISS when their information was collected. None of the survivor advocates we spoke with understood, at the time they shared confidential information with a collecting ISE, that the collecting ISE could or may be obligated to disclose their information to other ISEs and that this may occur with or without their consent. Nor were they made aware that the other ISEs with which their information may or must be shared includes a range of justice, health, human services, child protection and education and care services.

One survivor advocate who was told about the FVISS shared that the practitioners she met with read her a ‘script’ about information sharing, while another survivor advocate recalled signing a piece of paper when first engaging with a service but having no idea what she was signing, assuming it may be about the organisation’s duty of care or some type of consent form.

Other survivor advocates suggested that government should create fact sheets for victim survivors that clearly show that ISEs are held to the same legal requirements as each other. Survivor advocates suggested that fact sheets be available in plain English and multiple languages and contain information on where to get legal advice on whether to share confidential information with ISEs.

It was concerning to us that so few survivor advocates we spoke with said they were told about the FVISS when their information was collected. This suggests that some ISEs may not be complying with their obligations under the Privacy Principles as often as they should, or the advice is not being understood in the context of the crisis the victim survivors were experiencing. While we do not think it is necessary that all victim survivors can identify the FVISS by name, we consider that victim survivors should have a clear understanding of how ISEs may share their confidential information.

Reflecting the importance of promoting victim survivor agency and control over their information, we considered potential amendments to Part 5A of the Act to promote compliance with the Privacy Principles for collecting information, insofar as that information relates to a victim survivor’s experience of family violence. We recognise the value in not carving out aspects of the general privacy regime in other legislation, noting that the privacy regime reflects best practice and is often consistent with approaches in other Australian and international jurisdictions. However, in the context of introducing specific information sharing powers and obligations in Part 5A of the Act that both modify and replicate aspects of general privacy laws,²⁴ we believe there would be value in Part 5A providing for an ISE’s obligations when collecting information from a victim survivor.

This approach would have the advantage of bringing this key aspect of dealing with victim survivor information into scope for the FVISS. Although we were not expressly told why some ISEs may not be informing victim survivors about the FVISS as required under the Privacy Principles, we consider that it is a strong possibility that practitioners are focused on applying the provisions in Part 5A when dealing with family violence–related information. As a consequence, they may be less mindful about other privacy obligations that sit outside the FVISS. By bringing privacy obligations for collecting information into Part 5A, practitioners will be able to primarily look to one piece of legislation when dealing with key aspects of victim survivor information sharing.

We also note the considerable effort that continues to be given to developing guidance and providing training for ISEs about the FVISS. We believe that bringing the collection of victim survivor information by ISEs into Part 5A would enable this existing work to be leveraged and increase ISEs’ understanding of, and compliance with, their privacy obligations.

We therefore recommend that Part 5A be amended to expressly require ISEs to inform victim survivors about the FVISS when collecting their confidential information. The new provision should reflect the existing obligation under the Privacy Principles. It should require an ISE, when collecting confidential information from a victim survivor that relates to their experience of family violence, to take reasonable steps to ensure the victim survivor is aware of the circumstances in which, and the types of individuals and organisations to which, their information may or must be disclosed under Part 5A, including without consent.

Because this issue was raised in the context of our discussions with survivor advocates, we have not considered the appropriateness or otherwise of extending this requirement to third parties. We suggest that the government consider this option further in the course of developing legislative amendments.

Sharing of a victim survivor’s confidential information, with consent, to avoid the retraumatisation associated with a victim survivor retelling their story is not occurring as consistently or widely as needed

In our consultations with survivor advocates and service providers, we were regularly told that reducing the need for victim survivors to retell their stories is a vital part of minimising their trauma. We were also told that this could be best achieved from better service coordination through sharing confidential information. While this confidential information may be contained in materials such as Victoria Police family violence reports, we were most often told that MARAM risk assessments are the most relevant type of confidential information to share to reduce victim survivor retelling of their story and associated trauma. For example, inTouch Multicultural Centre Against Family Violence stated:²⁵

The information sharing provisions and the MARAM have improved efficiency and collaboration across agencies and has also been useful for clients. Where a robust risk assessment has been conducted, clients no longer have to repeat their story to a new worker. Upon referral, clients are often relieved that they don’t have to retell their story, with the risk of retraumatising them or taking up more valuable time.

The ability for information sharing to reduce trauma is also highlighted in the MARAM Framework policy document, which states that effective information sharing can “keep victim survivors from having to repeat their experiences to multiple services, which can be discouraging, disempowering and re-traumatising”.²⁶

One survivor advocate relayed a positive experience when referred from The Orange Door to a social worker. The survivor advocate shared that she may not have met with the social worker were it not for information sharing because she found it too exhausting to retell her story. In contrast, one survivor advocate told us that his fear of ISEs improperly sharing his confidential information was so strong that he would prefer to be retraumatised by retelling his story rather than risk information getting into the wrong hands and living with the consequences.

Several survivor advocates told us that they wanted ISEs to share their MARAM risk assessments upon referral to new services to avoid having to retell their stories. But the ISEs declined because, for example, the risk factors in the assessments were viewed as ‘out of date’ and a new risk assessment was required to determine a victim survivor’s current level of risk.

As explained earlier in this report, confidential information can be shared under Part 5A for a family violence assessment or protection purpose. A family violence protection purpose is defined as the purpose of managing a risk of a person committing family violence or a person being subject to family violence, and includes the ongoing assessment of the risk of the person committing or being subject to family violence.²⁷ Although the MARAM Framework policy document and practice guides support a broad interpretation of risk management,²⁸ we understand that Part 5A does not support information sharing for the sole purpose of preventing victim survivors from having to repeatedly tell their story, thus avoiding trauma.

However, we note that MARAM risk assessments and other victim survivor confidential information can currently be shared, with consent, under general privacy laws. The Privacy Principles provide that an individual’s personal or health information may be disclosed with their consent.²⁹ In light of this, it was concerning to hear that some ISEs had declined to share MARAM risk assessments, even when requested by a victim survivor to do so.

In our view, Part 5A should promote information sharing, with consent, to reduce a victim survivor’s trauma. We recognise and agree with the concerns of victim survivors and stakeholders that ISEs are not effectively sharing confidential information as often as they should to achieve this objective. As discussed above, we believe this may partly be a consequence of practitioners solely or primarily focusing on the provisions in Part 5A when dealing with family violence–related information. This may create uncertainty, or a lack of consideration, as to whether MARAM risk assessments and other information can be shared under general privacy laws, with consent, for the primary purpose of reducing trauma.

We have explained earlier in this chapter the benefits of outlining key family violence–related information sharing obligations in Part 5A, including in supporting practitioner understanding of, and compliance with, their obligations. For the same reasons, we recommend that Part 5A be amended to provide that a victim survivor’s confidential information may be disclosed, with their consent, for the purpose of reducing trauma. We believe this would be consistent with one of the objects of Part 5A, being to promote service coordination to further the Act’s purposes.³⁰

Additional survivor advocate reflections on information sharing

Survivor advocates shared other reflections and views on information sharing and general service provision. This section outlines these reflections.

Information sharing should be used to promote the positive activities of adult victim survivors to keep themselves and their children safe

Survivor advocates told us that information sharing between ISEs should be used to support the actions of adult victim survivors to manage risk to themselves and children. Two survivor advocates used the example of reports made to Child Protection. One survivor advocate said that ISEs should share not only perpetrators’ behaviours that were identified as family violence risk factors but also how protective parents were managing risk to ensure a more complete understanding of what was occurring. This view was supported by another survivor advocate who relayed two different experiences of reports to Child Protection by a hospital. This experience is outlined in Box 8 in Chapter 6.

As noted above, relevant information for a family violence protection purpose includes all activities that keep victim survivors safe. There is nothing in Part 5A that prevents ISEs from sharing information, with appropriate consents, to provide a more complete picture of both risk and risk management.

ISEs should hold perpetrators to account and better support protective parents

Adult survivor advocates with children shared with us that in their view ISEs do not hold perpetrators to account for their violence, sometimes making them feel that they are entirely responsible for the care and safety of their children. For example, one survivor advocate shared that when she reported a breach of an FVIO by the perpetrator that caused risk to their children, Child Protection did not take any steps to protect the children from the perpetrator, closing the case on the basis that the adult survivor advocate was denying the perpetrator access to the children. Although we recognise that the threshold for investigation may not have been met in this case,³¹ and that other agencies such as Victoria Police also have a role in investigating the FVIO breach, we acknowledge the adult survivor advocate’s view that Child Protection did not do anything to make the perpetrator accountable for putting the child victim survivors in an unsafe situation.

Survivor advocates we spoke to who had experienced family violence as children shared a similar position about the lack of perpetrator accountability. For example, we heard from two survivor advocates that, in their view, a child was more likely to face consequences for minor property damage in a residential care facility than a perpetrator was for their family violence.

Another survivor advocate discussed the importance of whole family solutions that include victim survivor safety, perpetrator accountability, and preventing any further trauma to adult and child victim survivors.

Information sharing should be used more often to accurately identify the predominant aggressor

Survivor advocates told us that the fear of misidentification as the predominant aggressor stops victim survivors from trusting authorities and reporting to police while also creating added trauma for those who seek help. Survivor advocates shared with us that the fear of providing confidential information to ISEs is particularly heightened when victim survivors had criminal records (even if for minor offences or false charges as part of perpetrator abuse), alcohol and other drugs (AOD) issues, or previous mental health treatment.

Some service providers gave us similar feedback. For example, No to Violence identified the correct and appropriate identification of the predominant aggressor as a notable inconsistency in organisational approaches to risk identification, assessment and management.³²

We have previously reported on the progress made to support key workforces in accurately identifying predominant aggressors and have noted the grave consequences of misidentification for victim survivors and the challenges of rectifying misidentification.³³ We understand that government departments and agencies led by Victoria Police are taking action in response to our previous report and are working to address the causes and remedies for misidentification.

Part 5A supports information sharing to ensure the accurate identification of predominant aggressors and victim survivors. The Ministerial Guidelines also provide guidance for determining whether a person is a perpetrator or victim survivor, resolving disagreements between ISEs, and steps to take following misidentification.³⁴ While we do not believe legislative amendment or changes to the Ministerial Guidelines are necessary, we considered how information sharing could further support accurate identification.

In Chapter 4, we discuss how limited access to CIP reports has resulted in different service responses for victim survivors. As stated in that chapter, expanding the list of declared CIP requesters is beyond the scope of our legislative review. However, we note that broader access to CIP reports may help address misidentification and alleviate victim survivor fears. For example, the Victims of Crime Helpline, being the recipient of Victoria Police referrals for adult male victim survivors of family violence, may benefit from having access to CIP reports. We understand that part of the helpline’s role is assessing adult male victim survivors to ensure misidentification has not occurred. However, they told us that without access to CIP reports, their ability to make accurate assessments is limited. Allowing the helpline access to CIP reports may support greater accurate identification and benefit the accurate identification of predominant aggressors across the system.

Other reflections

Survivor advocates also shared the following views:

• Child victim survivors often do not know that support services are available. But when they do find services, they are concerned that adults will not believe them or take them seriously.
• Some larger agencies need to do more to ensure family violence information is shared internally with consent to avoid needing to repeat information about previous incidents of violence, with information also needing to be accurately recorded.
• Victims of violence perpetrated by neighbours often have similar experiences to victims of family violence in terms of feeling unsafe in their own homes.
• Allied health professionals such as sports coaches and trainers should be given the required skills to do a version of the MARAM appropriate for them because they are on the frontlines of daily violence and most are not currently trained to identify or respond appropriately.

Footnotes

1. Family Violence Protection Act 2008 (Vic), section 1.
2. Victoria, Parliamentary Debates, Legislative Assembly, 23 March 2017, p. 931 (Martin Pakula, Attorney-General).
3. As noted earlier, the Act refers to people using other terminology, namely: person of concern (perpetrator), a person who is alleged to pose a risk of family violence (alleged perpetrator), primary person (victim survivor), and linked person (third party).
4. Family Violence Protection Act 2008 (Vic), section 144J(3)(a).
5. Ibid., sections 144NA(b), 144NB(b).
6. Ibid., section 144NC(2).
7. Ibid., section 144A. The Ministerial Guidelines further note that express consent can be given verbally or in written form: Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 104.
8. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 13.
9. Family Violence Protection Act 2008 (Vic), section 144ND.
10. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), Chapters 3, 4 and 5.
11. Ibid., Chapter 9.
12. Ibid., p. 104. The Ministerial Guidelines include further explanation of each of these elements of consent at pp. 104–107.
13. inTouch Multicultural Centre Against Family Violence, Submission No 41, p. 1.
14. Family Violence Protection Act 2008 (Vic), section 144J(2)(b).
15. Victorian Government, Victorian Government Gazette, No S 445, 25 September 2018, p. 1.
16. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), p. 60.
17. Family Violence Protection Act 2008 (Vic), section 144M.
18. Ibid. Under section 144M(2)(b), confidential information about a perpetrator may also be shared with a child victim survivors’ non-perpetrating parent.
19. Family Violence Protection Act 2008 (Vic), section 144MA.
20. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), pp. 54–55.
21. Under section 144QB of the Family Violence Protection Act 2008 (Vic), if an ISE is not already subject to the Privacy and Data Protection Act 2014 (Vic) or the Privacy Act 1998 (Cth), the Privacy and Data Protection Act 2014 (Vic) will apply to the handling of personal information or unique identifiers by that ISE.
22. Privacy and Data Protection Act 2014 (Vic), Schedule 1; Health Records Act 2001 (Vic), Schedule 1. We note that in some cases, the Australian Privacy Principles may also apply: see the Privacy Act 1988 (Cth), Schedule 1
23. Privacy and Data Protection Act 2014 (Vic), Schedule 1, Principle 1.3(c)–(d); Health Records Act 2001 (Vic), Schedule 1, Principle 1.4(c)–(d).
24. An example of where Part 5A replicates general privacy laws is the serious threat exception in sections 144NA(b) and 144NB(b) of the Family Violence Protection Act 2008 (Vic), which replicates an exception under the Privacy and Data Protection Act 2014 (Vic), Schedule 1, Principle 2.1(d)(i) and the Health Records Act 2001 (Vic), Schedule 1, Principle 2.2(h)(i).
25. inTouch Multicultural Centre Against Family Violence, Submission No 41, p. 6.
26. Victorian Government, Family Violence Multi-Agency Risk Assessment and Management Framework: A Shared Responsibility for Assessing and Managing Family Violence Risk (June 2018), p. 44.
27. Family Violence Protection Act 2008 (Vic), section 144A.
28. For example, the MARAM practice guide for working with victim survivors states that risk management is “defined broadly to include stabilisation and recovery, such as the impact of family violence on wellbeing and needs”: see Victorian Government, MARAM Practice Guides: Foundation Knowledge Guide: Guidance for Professionals Working With Child or Adult Victim Survivors, and Adults Using Family Violence (February 2021), p. 330.
29. Privacy and Data Protection Act 2014 (Vic), Schedule 1, Principle 2.1(b); Health Records Act 2001 (Vic), Schedule 1, Principle 2.2(b).
30. Family Violence Protection Act 2008 (Vic), section 144H(b).
31. Section 162 of the Children, Youth and Families Act 2005 (Vic) outlines when a child is considered to be in need of protection. This includes if the child has suffered, or is likely to suffer, significant harm as a result of physical injury and the child's parents have not protected, or are unlikely to protect, the child from harm of that type.
32. No to Violence, Submission No 26, p. 7.
33. Family Violence Reform Implementation Monitor, Monitoring Victoria’s Family Violence Reforms: Accurate Identification of the Predominant Aggressor (final report, December 2021).
34. Victorian Government, Family Violence Information Sharing Guidelines: Guidance for Information Sharing Entities (updated April 2021), pp. 49–53.