Submission to Marrakesh Treaty Implementation Options Paper

Submission to Marrakesh Treaty Implementation Options Paper

Submission to Family Law Council

Your details

Name/organisation / Suzan Cox QC
Northern Territory Legal Aid Commission
Contact details / Locked Bag 11 Darwin NT 0801
(08) 8999 3000


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.

The Northern Territory Legal Aid Commission has limited ability to make submissions due to resourcing constraints. The NT’s Department of Children and Families (“DCF”) is the relevant government department responsible for child protection.

  1. Experiences of children and families who are involved in both child protection and family law proceedings

Proceedings difficult to understand

Legal proceedings in either jurisdiction are often confusing for parties, who are already dealing with a number of other pressures related to their proceedings (for example, loss of family support, change of accommodation and mental health issues, such as anxiety and depression). Navigating the concepts, process and paperwork in just one legal matter can be challenging.Navigating the same in two proceedings is overwhelming for vulnerable clients. It is difficult for many clients to understand legal advice about the different thresholds, terminology and considerations in each jurisdiction. For example, in the Northern Territory, the “best interests of the child” and “parental responsibility”are concepts used in the child protection jurisdiction and the family law jurisdiction, but they are defined differently in each. Many clients in this jurisdiction are Aboriginal whohave English as a later language and many have literacy issues. It is particularly challenging for such clients to understand each system and the language of each system. When a matter goes between the two jurisdictions, sometimes on more than one occasion, it inevitably becomes a confusing and an extremely protracted experience for families.

Funding to provide legal assistance to parties with standing in these proceedings is limited and Northern Territory Legal Aid Commission must make difficult decisions in prioritising the granting of legal aid. For example, the Commission has ceased providing a duty solicitor in child protection matters. It is vital that appropriate funding is available to enable legal services to represent parties to proceedings for those who have standing to be parties.

Placement arrangements and maintaining contact with family

Territory Courts in child protection proceedings are not tasked with, and empowered to promote the child’s relationships with his or her biological parents in the same way as in the family law system. WhenDCF has daily care and control of a child, it is not necessarily required to arrange for any contact time with either biological parent and it is unsettled at law whether the Care & Protection of Children Act permits the Local Court to compel the Department to provide a certain amount of contact between children in care and their parents.

Practical problems arising from this are best illustrated by examples from regional NT. Katherine is a regional town in the NT 330 kilometers south of Darwin. There is no public transport available between Katherine and Darwin and limited affordable alternative transport options. There is an extreme shortage of foster carers in the region, yet a high number of children are placed in care. Approximately 25% of the children subject to child protection proceedings in the Northern Territory are children from Katherine & its surrounds. Due to a paucity of foster carers in the town, it is common for children in care to either be placed into ‘group homes’ or with carers in Darwin. There are concerns about both situations. ‘Group home’ arrangements do not provide a stable family environment for the children and it is challenging for the service provider to adequately supervise children. For some children, this arrangement may result in more detriment to the child. Where children are placed outside of Katherine, it is impractical for children to have and maintain contact with their family. This situation can continue for anywhere from 3 months to over a year until child protection proceedings resolve,even in cases where the matter starts and stays in that jurisdiction, and may become permanent if the Court determines the child should remain in care.

Domestic and Family Violence

Many parties in dual proceedings have been victims of traumatic situations themselves, for example domestic and family violence. It can be emotionally challenging for these parties to have to recount their suffering on multiple occasions, including providing instructions in each matter, engaging with consultants and assessors in each matter, and giving evidence in each matter. In child protection proceedings, domestic violence victims are sometimes blamed for having failed to protect their children from being exposed to family violence.

The worst matters of which we are aware have started off as a child protection matters, these have then been discontinued and gone to the Federal Circuit Court as parenting, then DCF havethen commenced fresh child protection proceedings, before again discontinuing those proceedings, leaving the parties to go back to the Federal Circuit Court. These matters are few in number, but have all been extremely resource intensive and have taken greater than usual times to resolve.

Discontinuance of Proceedings

In the Northern Territory, DCF can (and does) unilaterally withdraw the child protection proceedings, sometimes without notice, when DCF considers the threshold for making a protection order is no longer met. DCF may also physically return a child to one parent without a great deal of consideration about the impact of placing the child with that particular parent as opposed to the other parent.

The result is a risk of a physical altercation between parties who both want the child/ren to live with them in the interim. Another risk is that of a young child remaining with one parent until a final hearing in family law proceedings for many months or more than a year later. This is in part because Family Law Courts may be cautious about further interim changes of residence after the child has already experienced so much disruption with being taken into care and placed with different family or non-family carers. It would be ideal for considerable care to be taken at to where a child is placed, when child protection proceedings finish abruptly.

One way to achieve a more considered process would be to empower Territory Courts to make interim family law orders. Another way would be to empower Territory Courts to compel DCF to keep a child in care until the parties have the opportunity to file proceedings in the Federal Circuit Court and that Court has the opportunity to consider where the child should live on an interim basis.

At times the family law process may not be well understood by DCF workers or lawyers and may be actively obstructed, if unintentionally. See Hambly & Anor & Clifton [2014] FCCA 2593.

The main way to improve these problems while there are separate child protection and family law systems, would be to finalize a matter in the same proceedings as often as possible in the same system in which proceedings commenced, as well as reducing the times a matter goes between the two systems as much as possible. Information sharing in these matters is also an important step, as is child protection lawyers understanding how family law proceedings work and family lawyers understanding how child protection proceedings work.


Ensure appropriate funding for legal assistance to family members impacted on by care and protection proceedings.

Reduce the number of occasions where proceedings are transferred between each system.

Promote information sharing.

Clarification on the power of the Local Court to compel the Department to provide a certain amount of contact between children in care and their parents.

Empower Territory Courts to make interim family law orders.

  1. Problems faced by practitioners and services in supporting clients involved in both proceedings

Information sharing initiatives such as the Federal Circuit Court’s Notice of Risk and building stakeholder relationships between the Family Law Courts and DCF have been helpful to reduce some of the problems for families in both arenas. An Information Sharing Agreement between Child Protection, the Family Law Courts and Legal Aid, along the lines of that recommended by Professor Richard Chisholm will also assist in reducing the challenges faced by practitioners in supporting clients across both proceedings, if that Agreement remains a live, guiding document.

Co-located child protection workers in Victoria and Western Australia also appear to have greatly assisted in information exchange, but this is unlikely to occur in smaller jurisdictions such as the Northern Territory due to funding limitations and the smaller numbers of matters.

It would also beneficial for Independent Children’s Lawyers to be able to represent children across both systems for many reasons, such as cost efficiency, continuity for the child, and so the lawyer acting for the child is across all of the information and evidence at all times. At the moment it is not uncommon for the parents to retain the same legal representation across both courts, but the child/ren’s representative to change. This leads to loss of continuity and sometimes the child/ren’s representative is the only lawyer operating without access to the evidence filed in the other proceedings.

There would need to be changes in how children’s representatives were funded and appointed for the same lawyer to be able to represent children in both jurisdictions in the Northern Territory. Currently the Legal Aid Commission funds, manages and appoints Independent Children’s Lawyers in family law proceedings. The NT Department of Attorney-General and Justice manages, funds and appoints children’s representatives in child protection proceedings. There are more stringent expertise required for lawyers to be on the panel of Independent Children’s Lawyers than to be Children’s Representatives in child protection matters.

There may also need to be changes in the model of children’s representation: in the Family Law Courts, Independent Children’s Lawyers represent children under a ‘best interests’ model. In child protection matters there is now a presumption of a ‘direct instructions’ model for children aged 10 years and over.

The Northern Territory Legal Aid Commission has particularly limited funding from the Territory for child protection proceedings. The Commission has ceased its duty solicitor service and has to limit the number of families it represents in child protection proceedings due to budgetary constraints. Parties may lose legal aid assistance when matters become too protracted.


Promote information sharing Initiatives.

Consistency in the appointment of children’s representation across the two jurisdictions.

Referral of child protection legislative power from the States and Territories to the Commonwealth if there is to be a single integrated system.

  1. What are the benefits to families of enabling Children’s Courts to make parenting orders?

The Northern Territory does not have a dedicated Children’s Court. Child protection matters are dealt with by Local Court Magistrates exercising “family matters jurisdiction”. Juvenile justice matters are dealt with by the “Youth Justice Court”. In practice, the same magistrates, or largely the same small number of magistrates preside in both jurisdictions. There are only 2 tiers of Courts.

Families would benefit if the Local Court could make interim parenting orders under the Family Law Act, in situations where the child protection proceedings are withdrawn and there is a dispute about with whom the child should live. It would be far more beneficialfor the Local Court to make interim family law orders than for families to either be left in a legal limbo until the first return date in family law proceedings. Alternatively, the Territory legislation could be amended to allow the Local Court to make a short (interim) protection order requiring DCF to keep the child in care for short time, even when DCF no longer consider the threshold to be met.

We do not recommend that Territory Courts make final parenting orders under the Family Law Act when there is a dispute about the content of those orders. We consider it is important such orders are made by judicial officers who specialize in that law, and receive ongoing trainingabout children’s developmental needs and relevant research, such as attachment theory.

Likely challenges in having Territory Courts making parenting orders would include achieving sufficient specialization and ongoing judicial education to ensure parenting orders that are made are of a consistency and quality that will benefit families.

It is our experience that intrastate Local Courts making Recovery Orders under the Family Law Act,for example, do not give as much consideration about the consequences of such orders for the families involved as do Federal Circuit Court judges, sometimes to the detriment of the children, who are the subject of those orders.


That Local Courts be given the power to make interim parenting orders when child protection proceedings end.

  1. Benefits for families of enabling Family Law Courts to make Children’s Court orders

Matters may come before the Family Law Courts where neither parent is considered to be a suitable or safe primary carer for the children. In these instances it may be beneficial for the Family Law Courts to be able to make an order that a child should be in the primary care of the relevant child protection authority. The principle of unacceptable risk could provide a suitable threshold for a Family Law Courts to make such an order.


Consideration be given to the Family Law Courts being empowered to make child protection orders, with a threshold mechanism such as the “unacceptable risk” principle.

  1. Improvement to information sharing and collaborative relationships

Child protection proceedings often involve the preparation of several expert reports, in relation to issues such as drug and alcohol dependency, parenting capacity and psychological assessments. These reports would be relevant to any related family proceedings, even if the reports had been prepared some time beforehand. There should be a fast and efficient way of equipping each court with reports prepared in the other court.

Additional caution should be taken when making reports in the child protection jurisdiction available to the Family Law Courts because assessments will often refer to allegations and reports in DCF material as though they have been found to be true and the evidentiary value of the allegations can actually be quite weak.

We refer and generally support the recommendation of Professor Richard Chisholm in his two reports on these issues: Information-Sharing in Family Law and Child Protection: Enhancing Collaboration and The Sharing of Expert Reports Between the Child Protection System and Family Law System.


DCF should provide regular updates to the Family Law Courts about any reports prepared or due to be prepared when the DCF is on notice that there are family law proceedings on foot.

The Independent Children’s Lawyer can and should play a role in ensuring information exchange with DCF.

The Family Law Courts should make orders permitting the release of family reports and other material to the relevant child protection agencies.

Judicial officers and legal practitioners in each jurisdiction undergo training about the reports from the alternate jurisdiction, including any possible limitations to the evidentiary value of such reports.

Yours sincerely

Suzan Cox QC


6 May 2015