Submission to Family Law Council

Your details

Name/organisation
(if you are providing a submission on behalf of an organisation, please provide the name of a contact person) / Federal Circuit Court of Australia
Contact details
(one or all of the following: postal address, email address or phone number) / Adele Byrne – Principal Registrar

(03) 8600 4470

Confidentiality

Submissions received may be published on the Family Law Council’s webpage, except where requests have been made to keep them confidential or where they relate to particular cases or personal information. Would you prefer this submission to remain confidential? NO

Your submission

Please note that your submission may address the questions in the call for submissions or a letter you received (simply provide the number of the question/s you are responding to), or provide any information you consider relevant to the Council’s terms of reference about families with complex needs and the intersection of the family law and child protection systems.

FAMILIES WITH COMPLEX NEEDS AND THE INTERSECTION OF THE FAMILY LAW AND CHILD PROTECTION SYSTEMS

SUBMISSION TO THE FAMILY LAW COUNCIL by the
FEDERAL CIRCUIT COURT OF AUSTRALIA

Preliminary comments

  1. Prioritising the safety of children is, and must continue to be, the focus of all those working in both the child protection and family law systems.
  1. Given the high incidence of allegations of child abuse and family violence in family law cases[1] there is often an overlap in jurisdictions and a particular family may have proceedings in both the child protection system and the family law system. As a result there can be duplication of processes or gaps in the protection afforded to children and which the current fragmented system does not adequately address.
  1. The benefits of vesting both family law and care and protection jurisdiction in the one forum are apparent. There are, however, significant difficulties associated with the constitutional divide between the Commonwealth family law jurisdiction and the State and Territory care and protection jurisdictions. These difficulties have been comprehensively discussed in various reports published in recent years.[2]
  1. The landscape of family law in Australia changed dramatically with the establishment in 2000 of the Federal Magistrates Court of Australia, now the Federal Circuit Court of Australia. Initially established to deal with the more simple and straightforward work of the Family Court of Australia and the Federal Court of Australia, the jurisdiction of the Federal Circuit Court has increased rapidly and now determines 86 per cent of all federal family law proceedings (excluding those in Western Australia which has its own state Family Court).
  1. Pre-filing dispute resolution procedures are now compulsory in all parenting matters, with certain exceptions. This has resulted in an increase in the proportion of parenting matters involving allegations of child abuse, family violence and other matters potentially imperilling the safety of children.
  1. The Family Court has Magellan, a specialised case management system to deal with complex child abuse cases. The resources required to implement it are not available to Federal Circuit Court judges and, consequently, not available to the majority of parenting cases which might benefit from it. In the face of this reality, the Federal Circuit Court has recently introduced a new risk screening device, the Notice of Risk, which is required to be filed with all parenting applications. This form identifies on the first court day those matters involving allegations of risk which in turn facilitates appropriate case management of those matters.
  1. The Federal Circuit Court has also been an active participant in the national efforts to improve the interface between the two systems and has sought to develop and enhance good working relationships with the State and Territory child welfare authorities to ensure greater access to important information at an earlier stage.

The terms of reference

We note the Family Law Council is initially considering only the first two terms of reference as follows:

(1)The possibilities for transferring proceedings between the family law and state and territory courts exercising care and protection jurisdiction within current jurisdictional frameworks.

(2)The possible benefits of enabling the family courts to exercise the powers of the relevant state and territory courts including children’s courts, and vice versa, and any changes that would be required to implement this approach, including jurisdictional and legislative changes.

In answer to the specific questions posed to assist in addressing those terms of reference, we offer the following:

  1. What are the experiences of children and families who are involved in both child protection and family law proceedings? How might these experiences be improved?

1.1.It is common for allegations of child abuse, family violence, drug and alcohol abuse and/or mental health issues to be raised in the context of family law parenting proceedings. In such cases there is often current or past involvement of child protection authorities. The worst case scenario for such a family is one in which there is either ongoing litigation in both systems, or the family falls through the cracks and neither system adequately deals with the child protection issues. A choice needs to be made as quickly as possible about whether the matter should proceed in a children’s court or whether the information obtained by the relevant child protection authority can be made available to a court exercising family law jurisdiction and the matter dealt more comprehensively in that forum.

1.2Concurrent proceedings in both jurisdictions can be a significant logistical and cost burden to families and present a risk of “systems abuse” in which children are serially interviewed by various experts in each jurisdiction. Proceedings can also be delayed when one court adjourns, awaiting the results of the other.

1.3Sometimes the relevant state child protection agency will cease their involvement with the family if a party commences family law parenting proceedings, assuming the court exercising family law jurisdiction will deal with all matters including the child protection issues. However, the court exercising family law jurisdiction does not have investigative powers and has no capacity to order state based out of home care in the event it determines neither party is a viable carer for the child or children.

1.4Child protection agencies also sometimes cease their involvement with a family when one party is seen by them to be appropriately protective and is encouraged to commence family law proceedings to obtain long-term orders. However the party tasked with bringing the proceedings may not do so and the child or children are potentially left without protection.

1.5A third unsatisfactory scenario is when a child protection authority takes action under state legislation without consultation or liaison with those involved in existing family law proceedings or as soon as the family law proceedings are completed if the result is not considered satisfactory. Whilst the child protection authorities have statutory responsibility for child safety and must take emergency action in appropriate circumstances, in non-urgent situations the better course might be to intervene in established family law proceedings rather than commencing completely new proceedings in the alternative jurisdiction. Specific case examples involving these difficulties can be provided. Thankfully, the incidence of them has reduced with the greater levels of collaboration between the Federal Circuit Court and the various State and Territory child protection authorities.

2What problems do practitioners and services face in supporting clients who are involved in both child protection and family law proceedings? How might these problems be addressed?

2.1Practitioners and services seeking to support those involved in both the family law and the child protection systems face difficulties similar to their clients. These include practical difficulties of having to juggle different court dates and the various obligations and appointments required of them for each set of proceedings.

2.2The best way such problems can be addressed is for the appropriate forum to be selected as early as possible and for all information available in the alternative jurisdiction being made available to the court ultimately exercising jurisdiction in relation to the family.

2.3Practitioners who spend most of their time in one or other of the jurisdictions may not have sufficient knowledge and expertise in the other area of practice to optimise the outcome for the child or children involved in the proceedings. In that case further training would be required but that is not a major issue.

2.4The different legal and cultural environments and, more importantly, the different thresholds for intervention, present considerable obstacles for those seeking to navigate both systems. The Victorian co-location initiative (and other centralised contact point models) in which an officer from the Victorian Department of Human Services is located in the same building as the federal courts exercising family law jurisdiction has provided the opportunity for valuable information sharing between the two sectors. This has resulted in a better understanding of how each system works in Victoria and has contributed to improving the interface between the two systems.

3What are the possible benefits for families of enabling Children’s Courts to make parenting orders under Part VII of the Family Law Act? In what circumstances would this power be useful? What would be the likely challenges for practice that might be created by this change?

3.1The most obvious benefit of having parenting and child protection matters dealt with in the one forum is the avoidance of separate proceedings in each jurisdiction for the one family.

3.2Children’s courts are arguably the best forum for the determination of cases involving both family law and care and protection issues because of the expertise of children’s court magistrates in child protection matters and their access to, and support from, the child protection authorities. The resource implications are likely to be very significant given existing pressures on child protection authorities and children’s courts but the benefits to children in having all matters affecting them being determined by the one court must be the over-riding consideration. Considerable savings may also be achieved by avoiding parallel proceedings.

3.3Given the resource implications, a compromise position might be the exercise of family law jurisdiction by children’s court magistrates in circumstances in which, by the end of proceedings, the arrangements for the child have stabilised and it is obvious that long-term parenting orders should be made in favour of a particular person or persons. In that scenario, the children’s court ought to be able to make those orders exercising family law jurisdiction. That would avoid the inconvenience, difficulty and expense to the carer of having to make a separate application in a federal court exercising family law jurisdiction. It would also enable the parties to end their litigation at an earlier stage and, hopefully, remove further opportunities for discord. Where the child protection issues are resolved but there remains a substantial dispute about what family law orders ought to be made, arguably the more appropriate course would be for the litigation to be transferred to the family law jurisdiction or to pause the child protection proceedings until the family law proceedings are underway and then finalise the children’s court proceedings.

3.4A conferral of power on children's court magistrates may involve challenges for the practice of lawyers and the relevant judicial officers especially those without previous family law experience. They will also not have available the various supports available to the family courts, such as family consultants.

3.5The expansion of the jurisdiction of children's courts to allow magistrates to exercise family law jurisdiction would not require constitutional amendment. It would require onlyan amendment to theFamily Law Act. This would not involve an extension of family law jurisdiction to judicial officers who do not already have it as there is already full original jurisdiction vested in state magistrates under the Family Law Act. It would do no more than overcome an anomaly involved in the artificial distinction between a single magistrate constituting either a children's court or magistrates court. It would also ensure those magistrates with some expertise in family law could exercise the jurisdiction regardless of the state court in which they sit. This was recommended in ALRC Report 117 despite concerns raised about resources, training and the fundamental differences in the perspectives of the two systems.

3.6There are, however, some inhibiting factors which need to be addressed if children’s courts are to exercise family law jurisdiction either on limited basis or more broadly. The first is the lack of capacity for the federal family law courts to transfer appropriate parenting proceedings (those which also involve care and protection issues) to a State or Territory court whereas State and Territory courts can transfer parenting proceedings to the federal courts without restriction. This situation enables resourcing issues to overtake principled decision making based upon the needs of litigants and the overall cost to the public.

3.7A further disincentive for State and Territory magistrates to exercise family law jurisdiction lies in the fact that appeal from their decision is to either the Family Court of Australia or to the Supreme Court of the relevant State or Territory and is by way of hearing de novo rather than only on a question of law. This contrasts with appeals from State and Territory magistrates when exercising child protection jurisdiction which are generally heard by State district courts and only on questions of law. Consideration should be given to amending the appeal provisions in the Family Law Act to allow appeals from a State magistrate exercising family law jurisdiction to be heard by both the Family Court and the Federal Circuit Court and only on a question of law rather than by de novo hearing. The appeal court should have the power to retain the matter for retrial if the appeal is allowed. This would allow litigants to rely on the decisions of state magistrates unless an error is established and avoids having a full re-trial as a matter of course.

4What are the possible benefits for families of enabling the family courts to make Children’s Court orders? In what circumstances would this power be useful? What challenges for practice might be created by this change?

4.1The Family Law Act 1975 makes provision for the establishment of state family courts[3] but Western Australia is the only state to do so. The Family Court of WA is largely funded by the Commonwealth. Its jurisdiction mirrors that of the Family Court of Australia except that it also has the capacity to exercise jurisdiction under WA state law enabling it to deal with both child welfare and family law matters concurrently.

4.2There is an obvious benefit in courts exercising family law jurisdiction being able to make orders which are otherwise only available in the children’s courts. It would allow a range of resources to be available to assist in the implementation of protective arrangements for children. For example, orders could be made for the relevant child protection authority to investigate serious allegations of risk, to provide reports and to provide particular targeted support for a family. There would be challenges for practice created by that change as each State and Territory has its own child protection legislation and each child protection authority is structured differently. Legal practitioners and the judicial officers of the federal family courts would need to become familiar with each.

4.3In the absence of constitutional change or a referral of state powers to the Commonwealth, consideration could be given to the provision of dual commissions to judges of the federal family courts. A memorandum of understanding or similar could be negotiated whereby those judges could deal with child protection issues under State and Territory legislation where proceedings for parenting orders are already on foot before them. There may be particular procedural requirements, such as standing down parenting proceedings while the federal family court is reconstituted as a State court. Such an arrangement, while not optimum, would reduce the need for separate proceedings in each jurisdiction and enable a more holistic approach to the issues facing the family.

5Are there any legislative or practice changes that would help to minimise the duplication of reports involved when families move between the family courts and Children’s Courts?

5.1The consultation undertaken by Professor Chisholm in respect of information sharing generally and how experts’ reports can be better shared between the two systems has highlighted some legislative and other impediments which need to be addressed. The recommendations have, however, resulted in a range of practice changes in both sectors which allow a greater degree of information sharing between the two systems. This includes agreements for reports produced for the purpose of children’s court proceedings to be made available to courts exercising family law jurisdiction and vice versa. These practices help to minimise duplication and the risk of “systems abuse”. Of particular significance are the facilitative provisions in the NSW state legislation which establishes a scheme for the sharing of information. The Federal Circuit Court is one of the “prescribed bodies” for the purpose of the scheme. These provisions have supported the current “Personal History Pilot”' between the Federal Circuit Court and the NSW Department of Families and Community Services in which the provision of personal histories of children held by the Department are made available to the Federal Circuit Court at an early stage.