30 April 2015
Family Law Council Secretariat
C/- Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
Via email:
Dear Sir/Madam,
Family Law Council reference on Families with Complex Needs & the Intersection of the Family Law and Child Protection Systems
Please find enclosed the completed cover page for the Family Law Practitioner’s Association of Queensland’s (FLPA) submission together with a copy of FLPA’s written submission in relation to the first six questions posed.
We thank you for considering our submission. Please do not hesitate to contact us should you require any further information.
Yours sincerely,
Clarissa Rayward
President
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?
Children and families who are involved in both child protection and family law proceedings often experience confusion for a number of reasons including:
1. Some Magistrates Courts across the country will exercise jurisdiction under the Family Law Act, for example in northern New South Wales, but a number of other Magistrates Courts in Queensland, for example, will not. As a result, hearings in each of these proceedings usually occur in different buildings.
2. There are significant differences in the law to be applied by each Court, in each Court’s processes and even in the participants in the proceedings (particularly if they identify as being Aboriginal or Torres Strait Islander).
3. In circumstances where the Department has acted to remove one child, but not other children born subsequently, this can lead families to experience confusion and concern regarding the legal system and processes. Whilst it is understood that the Department must consider the risk of harm to each child, there appears to have been some inconsistency at times in the past in terms of removal of children such that grandparents, aunts and uncles and even siblings have been told by the Department to file family law proceedings due to the Department’s reluctance/failure to act despite them having removed other siblings.
4. The level of support offered by the Department when involved in the child protection system is often different to that provided when involved in family law proceedings. An example of this is when support is provided to kinship carers of children, the subject of child protection orders, to facilitate time for children with their parents, whereas no similar support is available in family law proceedings. There are also differences in financial, medical and educational support for the children provided.
FLPA members have experienced challenges in trying to arrange time between siblings when one child has been the subject of a Child Protection Order and another, the subject of family law proceedings. They have also experienced issues trying to work with the Department to facilitate time between two children (one of whom was the subject of a child protection order and the other the subject of a Family Law Act order) and their mother who was at that time incarcerated. In that case, despite both children being placed with the same kinship carer, the Department would not help facilitate time for the mother in prison with the child who was not the subject of a child protection order even though they were assisting with transport for the other child.
That same carer also experienced differences in the level of financial, medical and educational support provided for each child as each was being dealt with by a different system concurrently. She was eligible for a lot more support for the child, the subject of the child protection order.
Children who are the subject of family law proceedings and whose siblings may be the subject of child protection proceedings often struggle to understand why there are different arrangements in place for their siblings and why they can’t be together with their siblings. Dependent on their ages, children may also experience a different level of involvement in the decision making (eg family group meetings in the child protection context) and the Court processes, depending on the jurisdiction.
Children and families are also often worn down by having to tell their story to so many different people when involved in different proceedings. For example their lawyers so they can prepare their affidavits, to the Department, to a family report writer, to a social assessment report writer and/or to a psychiatrist.
Children and families’ experiences could be improved by:
1. Courts being properly resourced to hear and determine ‘hybrid’ cases so that all issues in relation to a sibship can be dealt with at the one time. This may involve a transfer of proceedings such that the one Court could determine all relevant issues. This would also require additional funding to both Court systems to ensure that cases involving both child protection issues and family law issues could be heard and determined in a timely manner, in addition to their core caseloads.
2. Ensuring that, in appropriate and practical circumstances, Departmental practice is to assist with the facilitation of time with all children in the sibship not just those the subject of child protection orders.
3. A change to Departmental practice in cases where they have a current child protection order for a child, not encouraging others to commence proceedings in relation to that child’s siblings, to avoid their child protection responsibilities.
4. In the event family law proceedings are on foot, and in cases where the Department has previously been involved with the family, the Department seeking to intervene in family law proceedings to ensure that the Court determining the family law issues has access to all relevant information before it.
5. If proceedings are to remain between the two Courts, information/evidence should be shared between the Courts without the parties having to seek specific leave. The Rules of each Court should be amended to facilitate this.
6. Where possible the same experts should be engaged to ensure that parties/the children are not exposed to too many experts. (It is noted in that regard that those experts will need to consider different issues dependent on the nature of the current proceedings.)
2) What 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?
One of the biggest problems facing practitioners in supporting clients who are involved in both types of proceedings is trying to assist them to understand the differences in the systems. As outlined above, not only do the Courts operate differently; cases are conducted differently; parties/children’s level of participation will be different; the terminology used is different; the grants of Legal Aid are significantly different and more importantly, the law/legal tests to be applied are vastly different. Child protection proceedings are conducted in local Magistrates Courts and are often in different locations to the family law proceedings. Clients have been known to turn up at the wrong Court on the wrong day as a result. As detailed above, it would be of assistance if the one, properly resourced Court, could deal with all child related matters.
It is challenging for practitioners and services to assist clients in understanding why they may be eligible for some services/assistance in relation to some of the children in their care but not others. For example, those children within the Child Protection system may be eligible for certain medical treatment, access to education plans, assistance and support in facilitating time with parents and the like whereas these services may not be available in family law proceedings. Some consistency to the provision of services for children who are part of a sibship would be ideal.
Practitioners also face the challenge of evidence gathering when involved in different proceedings. Clients are also often worn down by having to tell their story to so many different people and often think that they have told their lawyer something but have not. Relevant matters may then be left out of affidavit material placed before the Court because the client thinks it is already there.
Also, some evidence may be available in the family law proceedings which may be of assistance to the Court in the child protection proceedings and the reverse. However, to obtain that information, leave would need to be granted or the other Court would have to make a request for the other Court’s file. Once the information is available there are some evidentiary challenges in placing that material before the Court and in particular as to who is to be responsible for arranging (and paying for) the author of such material to give evidence etc. This could be addressed by a protocol about the exchange of information between the Courts or a Court Rule to the effect that leave does not need to be obtained for a party to rely upon evidence from one Court in the other.
Further, on occasions, one Court may make findings about particular issues which may be of relevance in the other proceedings. Clients are often legally aided or self-represented in child protection proceedings and may not have access to transcripts of proceedings before the other Court. It would be of assistance if orders could be made for the preparation of transcripts which could be placed on Court files so that the parties/the other Court could make reference to it if required.
Another significant issue, is that of supervised time. Children involved in child protection proceedings are often able to spend more regular time with their parents than can be facilitated in a family law context due to the lack of availability of services and the cost of the provision of supervised time. Also, issues have arisen in the past where interpreters have been required so that the supervisor can understand what is being said to the children. Funding was available for this through the Department for children the subject of child protection proceedings but not in a family law context. Again, consistency in approach would be preferred. Further, funding for interpreters for supervised time should be made available irrespective of the type of proceedings the parties are engaged in.
3) What 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?
Possible benefits for families identified by FLPA members are listed below:
1. the ability for separated families to have their dispute resolved in a single Court proceeding dealing with both child protection matters and family law matters, circumventing any need for proceedings to be litigated in two
2. a more straight forward and streamlined process for separated families, once proceedings are commenced in the Children’s Court.
3. a reduction in costs for parties in having to, in effect, start again by commencing family law proceedings if a child protection order is not made.
If the Children’s Court were enabled to make parenting orders under Part VII of the Family Law Act, the power would be useful in circumstances where:
1. the Department determines to withdraw a Children’s Court application because a viable carer is identified and that carer has applied for, or has indicated a willingness to apply to the Family Court for parenting orders;
2. where one or more of the parties to the proceedings in the Children’s Court is assessed by the Court as being in a position to adequately protect the child or children from harm.
Ultimately, if the Children’s Court had the requisite power, orders could be made without the need for further proceedings to be brought in the Family Court. This would prevent outcomes where orders protecting the child or children (in line with the Department’s intention) are not ultimately made, whether by reason of a failure on the part of the viable carer to bring an application in the Family Court at all, or due to the fact that the outcome in the Family Court jurisdiction is contrary to what the Department had intended.
The challenges for practice which might be created by such a change include:
1. a reluctance on the part of the Department or Judicial Officers in the Children’s Court to have further involvement in the matter once the child protection issues are determined;
2. resourcing issues for the Children’s Court to allow for Judicial Officer training and education in relation to family law legislation and rules, and an increase in workload through lengthened (or additional) hearings and supplementary material being filed relevant to family law issues; and
3. whether such proceedings are to be conducted in a closed Court or open Court.
4) What are the possible benefits for families of enabling the Family Court to make Children’s Court orders? In what circumstances would this power be useful? What challenges for practice might be created by this change?
A number of the possible benefits for families identified by FLPA members are listed below:
1. a greater awareness being required amongst lawyers practising in family law of the intricacies of child protection laws, and in turn a greater pool of lawyers able and willing to receive instructions and provide advice in child protection matters;
2. the preparation of affidavit evidence and collation of relevant information by the Department for the assistance of the Court when involved as a party to the proceedings in a more concise and focused manner (in the alternative to the usual production of an often lengthy file through the subpoena process);