Family Law Council–Discussion Paper
Families with Complex Needs and the Intersection of the Family Law and Child Protection Systems
TheAttorney-Generalhas issued the Family Law Council with the following terms of reference:
Many families seeking to resolve their parenting disputes have complex needs, including emotional, sexual and physical abuse, family violence, substance abuse, neglect and mental health issues. These disputes may be able to be better addressed with the assistance of relationship support services and/or court processes that can cut across the child care & protection and family law systems.
I request that the Family Law Council consider the following matters in relation to the needs of these families:
- The possibilities for transferring proceedings between the family law and state and territory courts exercising care and protection jurisdiction within current jurisdictional frameworks (including any legal or practical obstacles to greater inter-jurisdictional
co-operation). - 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.
- The opportunities for enhancing collaboration and information sharing within the family law system, such as between the family courts and family relationship services.
- The opportunities for enhancing collaboration and information sharing between the family law system and other relevant support services such as child protection, mental health, family violence, drug and alcohol, Aboriginal and Torres Strait Islander and migrant settlement services.
- Any limitations in the data currently available to inform these terms of reference.
Council will provide a final report to the Attorney-General on this reference by June 2016. In June 2015 the Council provided an interim report to the Attorney-General covering terms of reference 1 and 2following consultation with stakeholders across the family law and child protection sectors.Council is issuing this discussion paper to guide submissions in relation to its consideration of terms of reference 3 and 4 and its final report. The discussion paper reflects earlier submissions and consultations within the family relationship service sector. If you or your organisation would like to make a submission regarding these issues, please use the attached template andemail it (in Word) to by30 September 2015.
A note on terminology
The term ‘family law system’ is used here to refer collectively to the family courts (the Family Court of Australia, the Family Court of Western Australia and the Federal Circuit Court of Australia) and all family law and post-separation services, including legal aid and private legal services as well as family relationships services such as family dispute resolution, counselling, parenting orders programmes and contact servicesfunded by the Attorney-General’s Department. ‘Services outside the family law system’ is understood here to mean services provided by statutory agencies such as State and Territory child protection departments,mental health and drug and alcohol services and other non-government community sector service providers. The ‘child protection system’ refers collectively to the various state and territory children’s courts, child protection departments and associated early intervention and support services made available to children and families via child protection departments.
Preamble
There is growing evidence that the family law system is dealing with a large number of families with complex needs, including safety and support needs associated withfamily violence,child abuse, drug and alcohol dependency and mental health issues. However the family law system was originally established to resolve ‘private’ disputes between parents, rather than to investigate issues relating to children’s safety.
In particular, the family law system has no capacity to compel a forensic investigation of allegations of child abuse or neglect by a child protection department, and the child protection department may decide not to intervene in a family law matter. Decisions in family law matters, particularly at an early stage, can therefore be made on the basis of very limited information, which may put children or adults at risk.
In addition, families with complex needs often need to deal with more than one legal system in relation to the care of their children, includingthe federal family law system and state or territory courts dealing with family violence protection orders, family violence or child abuse related criminal charges and/or child protection proceedings. This leads to a justice system that,for this group of families,can be confusing,repetitive and slow to respond to risk.
Discussion:
Family relationship services: confidentiality, information sharing, collaboration
1. How can the exchange of information between the family courts and family relationship services (such as family dispute resolution services, counselling services and parenting order programs) be improved and facilitated in a way that maintains the integrity of therapeutic service provision?
Various family relationship services exist in the family law system to support families experiencing separation. These post-separation services includefamily dispute resolution (FDR)offered through Family Relationship Centres, legal aid commissions and private providers, as well as children’s contact services, counselling services for both adults and children and parenting orders programs.
Information that a person provides during FDRand whilst attending other Attorney-General's Department funded services noted above (excluding observations of a visit at a children’scontact service)iscurrently confidential and not admissible in any court proceedings (with some limited exceptions relating to child abuse). This confidentiality allows for disclosure of past behaviour, open consideration of options to settle disputes and allows for therapeutic service provision to be undertaken without fear of information being used strategically in litigation. On the other hand, some suggest that the present confidentiality rules and practices operate as a barrier to the sharing of information, particularly about family violence, that could assist decision-makers to assess risk to children.
Council is interested in your views about this issue. In particular, Council is interested in your views about whether there are certain kinds of information that service providers should be able to make available to the family courts and what circumstances might warrant this. Council is also interested in how practitioners might be able to share relevant information with the family courts to allow for earlier and better risk assessment and decision-making. During Council’s consultations, some stakeholders suggestedthe following possibilities:
a)Family dispute resolution practitioners providing further information in a section 60I certificate, including information to guide case management.
b)The provision of objective observational or assessment reports.Observational reports are currentlyprovided on written request by some children’s contact services as are some assessment reports for the Court.
c)Amending the confidentiality and admissibility sections of the Family Law Act.
Council is also interested in your viewsabout other ways that the family courts and family relationship services could collaborate more effectively to achieve safe outcomes for children, particularly where there are risks to children that donot meet the threshold for child protection system involvement.
Risk assessment in the family law system
2. What opportunities exist for ensuring the early assessment of risk to children in family law matters?
Families may enter the family law system through a number of services or organisations. An individual’s first point of contact may be with a Family Relationship Centre, a relationship services program,a legal aid commission orcommunity sector or private lawyer or a community sector service such as a health provider. Each of these access points may use a different approach or set of tools to determine whether children or adults are at risk of harm.
The Attorney-General’s Department commissioned the development of the DOORS (Detection of Overall Risk Screen) tool, which screens for various risks and was designed for use by multiple services within the family law system. DOORS has the potential to provide a shared language for risk identification and response across the family law system. However,currently this tool is not useduniversally. The DOORS tool is also not used by services outside the family law system.
Some States and Territories have their own standardisedrisk assessment tool, which is usedbydifferent service systems (corrections, child protection and community service agencies) within the jurisdiction (for example, the Common Risk Assessment Framework in Victoria). Some stakeholders have suggested that these tools couldalso be used on a State-by-State basis as a screening tool for family law matters.This approach could potentially enhance collaboration across the different systems and courts and help to address the problems of confusion and repetition for families noted above. On the other hand, there may be important reasons to use different screening tools for different purposes or professional groups.
Council is interested in your views about the potential benefits of using a common risk assessment tool across both the family law system and wider community and court sectors.
Some stakeholders have also raised concerns about the inability of the family courts to compel child protection departments to conduct a forensic investigation of child risk issues. In its 2002 report on the intersection of the family law and child protection systems, the Family Law Council examined the possibility of establishing a dedicated investigatory service for family law matters to address this gap. Council is interested in your views about this issue, including how to build the family law system’s capacity to conduct or access forensic risk assessments.
Services outside the family law system: information sharing
3. How can services such as child protection departments, mental health, family violence, and drug and alcohol services make relevant information available to the courts to support decision-making in cases where families have complex needs?
Services such as child protection departments, mental health, family violence, and drug and alcohol servicesoftenhave important information related to child and adult safety that could be usedbyfamily courts to inform their decision-making. In some jurisdictions,these service providers are required to notifythe child protection department when risk to a child is suspected.However, professionals working for service providers are not required to provide information to the family law system proactively where they identify risk issues. In many families, the risk to the child will not meet the threshold for action by the child protection department, and so the information provided to the department will never find its way to the family courts.
The issue of information sharing between the family law system and child protection systems has been explored in detail in two reports prepared by Richard Chisholm:Information-sharing in family law and child protection – Enhancing collaboration (2013), andThe sharing of experts’ reports between the child protection system and the family law system (2014). Professor Chisholmmade a number of recommendations designed to improve information-sharing between child protection systemsand the family courts. Significant progress has been made in somejurisdictionstowards implementing these recommendations, including the development of local stakeholder groups to progress the making of protocols between the family courts and State and Territory child protection systems.
Various family relationship service providers have also suggested they would be better able to deliver effective services to vulnerable children and families if the flow of information to them from child protection departmentswere improved. This includes informing services of the outcomes of referrals made by the service (whether they proceed or not) and undertaking investigations where appropriate even if family law matters are underway.On the other hand, some stakeholders have raised privacy concerns associated with information sharing between agencies.
The Family Law Council is interested in your views about these issues, including how to facilitate information sharing betweencommunity sector services and the family law systemin ways that do not increase the risksfor clients associated with increased information sharing.
Supporting children where safety concerns are identified
4. What services are needed to support families and children who use the family law system where child safety concerns are identified?
Where a screening and risk assessment process has identified that children involved in the family law system are at risk, responses may vary depending on the level and nature of risk and the services available in the local area.
A practitioner may make a notification to the local child protection department where the threshold for notification has been met. A parent or child in this circumstance may be referred to support services, for example family violence services. A parent may also be referred to services within the family law system, such as supervised contact at a children’s contact service or attendance at a parenting orders program. However, where the safety concerns do not meet the threshold for child protection intervention (particularly where there is one protective parent), children may lack access to services or supports to keep them safe.
Council is interested in your views on how the current system is operating in this respect and how it could be improved to support children when safety concerns are identified(whether they meet the child protection department’s threshold or not), for example, where there are concerns about a parent’s mental health or drug or alcohol use or use of family violence.
Services outside the family law system: collaboration
5. How can interaction between the family courts and relevant services, including child protectiondepartments, family violence, mental health services, drug and alcohol services and support services for Aboriginal and Torres Strait Islander families, be enhanced?
Organisations providing services and support to vulnerable families recognise the value in enhanced collaboration with other organisations and with the family courts.Such collaboration potentially spans the spectrum from greater interaction betweenorganisations, to collaboration in relation to individual clients, to integrated responses and greater co-ordination of services.
Various mechanisms may be used to promote enhanced interaction, integration and coordination. These include:
-Regular stakeholder meetings, such as the Family Law Pathways Networks.
-Joint training initiatives.
-Co-location of service provider personnel at the various courts, such as child protection workers and family violence support workers at the family courts, and service referral kiosks with broad knowledge of local services.
-Funding for Aboriginal and Torres Strait Islander family court liaison officers within Aboriginal and Torres Strait Islander specific agencies.
-Special court listing days for complex cases with multiple needs to maximise the likelihood and efficiency of having service provider staff attend courts and co-ordinate multi-agency responses.
Council is interested in your ideas about how to enhance interaction between the family courts and relevant services, including child protectiondepartments, family violence, mental health, drug and alcohol, and support services for Aboriginal and Torres Strait Islander families.
Integrated responses for families with complex needs
6. What opportunities exist for developing integrated responses to families with complex needs who use the family law system?
There appears to be a growing recognition at both the state and territory and federal levels in Australia that complex social issues require holistic responses involving multi-agency cooperation and collaboration. In particular, recent reviews of family violence have highlighted the need for integrated service responses. For example, the report of the Queensland Government’s Special Taskforce on Domestic and Family Violence, released in March 2015, recommended measures designed to promote ‘integrated responses to help victims of domestic and family violence navigate the system’ and enhance interagency co-operation and collaboration. New South Wales has recently introduced Integrated Domestic and Family Violence Service Programs that focus on multi-agency responses to domestic and family violence.
Given thepresence of family violence in many cases where families have complex needs, there may be opportunities for the family law system to partner with various agencies at the state and federal levels in creating formalised multi-agency structures to respond to family violence. Such an approach could be widened to include structures recognising and responding to other issues that families with complex needs present with, such as mental health and substance abuse concerns.