30 April 2015
CCYPD/15/290
Family Law Council Secretariat
C/- Attorney-General’s Department
3-5 National Circuit
BARTON ACT 2600
Dear Secretariat Officer
Re: Family Law Council reference on Families with Complex Needs & the
Intersection of the Family Law and Child Protection Systems
The Commission welcomes the opportunity to contribute comment on this important reference.
The issues surrounding the complexity and challenges arising when the family law and child
protection systems overlap have been the subject of extensive reviews over many years. Action
to resolve these issues is required.
For some time, the Commission has been aware of families with complex needs being
challenged by the navigation requirements of the family law system, and/or the intersection of
the family law and child protection systems. These difficulties have been revealed through
conversations held with parents and kinship carers, including those who have permanent care of
children, who have made contact with the Commission through its informal enquiries line.
Informed by these conversations the Commission believes the following key principles should
guide the approach to resolving these difficulties:
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that legal processes are affordable, ensuring that disadvantaged families are able to
access legal advice and support
there is consistency and clarity in legal pathways and processes, regardless of which
jurisdiction is concerned
that comprehensive screening and assessment regarding family violence occurs
co-location of Child Protection practitioners in the family court jurisdiction is standard
practice
duplication in examination of the issues in the two court jurisdictions is avoided
sharing of information across jurisdictions occurs, whilst requiring appropriate
safeguards around client confidentiality
access to independent children’s lawyers is available as required, and
a culturally inclusive approach is in place for Aboriginal and Torres Strait Islander
children and their families.
1. What are the experiences of children & families who are involved in both child protection
and family law proceedings? How might these experiences be improved?
In the Commission’s experience, children and families who have been involved in both child
protection and family law proceedings, either sequentially or simultaneously, have found this to
be very challenging, distressing and incomprehensible. There are great differences in the nature
of the two types of proceedings, including the level of formality, the types of evidence that is
admissible and the pace of the processes. The most noticeable feature for families would appear
to be the much greater cost involved in legal representation in family law proceedings, especially
given those proceedings which become protracted. In contrast, in child protection proceedings in
the Children’s Court, the Department of Health and Human Services (DHHS) and Victoria Legal
Aid (VLA) generally funds the legal representatives involved and abuse issues must be resolved
rapidly to prevent significant harm to children.
There are also some fundamental differences between child protection and family law
proceedings, in that the former relates to a dispute between the State and the parents regarding
minimum parenting requirements and abuse, whereas the latter is a dispute generally between
parents about custody matters. In addition, the former is a dispute about parents not acting in a
child’s best interests at a specific time, whereas the latter is a dispute about which parent is
most able to act in alignment with the child’s best interests over the longer term. These
differences between what is being meant by best interests across jurisdictions can be very
confusing and frustrating for families when involved with both types of proceedings.
Particular difficulties arise when transfers of proceedings between the two courts are not
seamless, for example:
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the Commission has encountered many situations where grandparents have acted as
kinship carers due to the incapacity of the parents and when the children were deemed
to be safe, Child Protection ceased involvement. This has led to grandparents having to
supervise access with parents and potentially not being able to manage the situation
when disputes arise, resulting in a need to approach the Family Court or seek to return to
the Children’s Court. This is a cost they had not planned for, and which many are not in a
position to afford, in addition to the costs of raising their grandchildren; and
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the Commission has heard of permanent carers who are separating and needing to
revoke or vary an order, approaching the Family Court to resolve where the child will
live, rather than the Children’s Court. Unfortunately this has the unintended effect of
opening up the residence issue for the biological parents to contest again, with such
instability clearly being traumatic for the child.
When complex cases have been considered by the Children’s Court and the protective concerns
addressed, it would be beneficial for the Court to be able to make Family Law parenting orders
in those cases where that is an issue.
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?
There may be some difficulties with practitioners and services from the two spheres of child
protection and family law proceedings not being very familiar with each other, as a result of
being State versus Commonwealth based. Given that the families have the same needs and
difficulties, regardless of the jurisdiction they find themselves in, it would be hoped this could be
overcome with comprehensive service mapping, service delivery protocols and effective
information sharing, and perhaps consideration of service co-location to improve integration.
The issues of communication and collaboration would seem to have been assisted in Victoria due
to service co-location, with the implementation of the Protocol between the Department of
Human Services, the Family Court of Australia and the Federal Magistrates Court, which was
introduced in May 2011. Victoria and Western Australia are the only states where a child
protection practitioner is co-located at the family court, at both the Melbourne and Dandenong
registries in Victoria. We are advised that this arrangement has assisted with the timeliness and
quality of responses and the process of appearing more often in family law cases and briefing
barristers as a “friend of the court” (amicus curiae). Consideration could be given to expanding
the co-location model to other jurisdictions.
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?
For current parenting orders in the Family Court, there can be great difficulties in being able to
achieve supervision of access with parents and the contact centres have a six month waiting list,
leading parents to private centres, which are seemingly not subject to the same regulatory
processes. Yet access supervision arrangements are often a major part of child protection
proceedings and supported through child protection programs, along with other support
services.
It would be very helpful for Children’s Courts to have the power to make parenting orders in
those scenarios where a parental reunification plan is not going to be viable and it is assessed to
be the type of order that is most appropriate in meeting the child’s best interests. Children’s
Courts may also offer less formal proceedings and greater embedding within the support service
system for families, practitioners may be more familiar with trauma informed practice and the
advantage that child protection can be assigned responsibility as “the bad guy” rather than
kinship carers directly being in conflict with parents for example.
It may also be very useful for the Children’s Court to have the power to plan for the longer term
and transition of young people into adulthood and independence. This might be especially
helpful in addressing the current difficulties that many young people experience in making this
transition from leaving care.
The Commission has also become aware that current Permanent Care Orders made in the
Children’s Court are not recognized in Commonwealth legislation in the same way that Family
Court orders are. This has resulted in difficulties in children being able to obtain documents such
as passports. This difficulty might be addressed by changing family law legislation or enabling
the Children’s Court to make parenting orders, or alternatives such as new orders to achieve
permanency. Parenting orders also fit with the objective of achieving permanency for children,
which supports them to become emotionally attached to their carers and make plans for their
future.
4. What 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?
It would be concerning if the Family Courts were enabled to make Children’s Court orders given
the potential for greater cost, increased formality and time taken to finalise proceedings in the
family court. One of the consequences could be the shifting of costs to carers, given they are
designated as being protective of the child. Furthermore, family courts do not have access to the
investigatory and case management functions is available through child protection services in
the children’s courts, which are necessary for managing allegations of child abuse.
5. Are there any legislative or practice changes that would help to minimize the duplication
of reports involved when families move between the Family Courts and the Children’s
Courts?
It would certainly be very helpful if there could be agreement between the Family Courts and
the Children’s Courts regarding a shared template for reports, at least to cover the demographic
information about the children and their families, including a comprehensive genogram, a
summary of the child protection history and a care arrangements history. If the child had ever
had a psychological/health/educational assessment, a summary of this would also be helpful.
Furthermore, if the child had provided legal instructions regarding their wishes to an
independent children’s lawyer, or participated in a child inclusive mediation process, this would
be important information for decision makers to be made aware of.
In Victoria a template has been designed to support Child Protection being able to provide the
required information and a summary of documents in response to a direction from the Family
Court. This is likely to be more useful than simply providing a copy of the entire case file, as
occurred previously.
Over the years, the Commission has had contact with a number of mothers who have
experienced chronic family violence that is characterized by financial abuse played out through
protracted family law proceedings, where an independent children’s lawyer might have offered
an independent view of what was in the child’s best interests and achieved a more rapid and
lasting resolution and essentially saving costs.
At various times, the Commission has been approached by families who wanted an independent
children’s lawyer to be involved, but further exploration of the issue indicated funding
constraints. Many parents are able to share the costs and Victoria Legal Aid is not in a position
to provide the services.
6. How could the sharing of information and collaborative relationships between the family
courts and child protection agencies be improved?
The co-location of Child Protection practitioners at the Family Courts in Victoria is clearly a very
important initiative in improving communication and understanding across the two systems. We
understand that this arrangement is working well in Victoria. Consideration could be given to
extending this arrangement to other jurisdictions.
In Victoria from 12 January 2015, all affidavits submitted by both parties are supplied by the
Federal Circuit Court registry to the Child Protection practitioner to ensure checking can be done
to detect the presence of child abuse issues. There were concerns that this process would
increase the workload and the Commission understands the number of reports has gone from
1,100 - 1,200 per month and this has now doubled. Apparently, Queensland began investigating
the implementation of a similar system but had workload concerns. This system has the clear
benefits of early detection and intervention in circumstances where child abuse has been
alleged.
In concluding it is vital that culturally relevant practices are in place to support Aboriginal and
Torres Strait Islander children and young people and their families. This includes Aboriginal and
Torres Strait Islander identification detailed on all court documents, the provision of culturally
appropriate court support services, available culturally specific legal representation and cultural
awareness training for lawyers and all court staff.
If you would like to discuss in further detail any of the matters raised in this submission, please
contact
us
on
(03)
8601
5886
or
email
bernie.geary@ccyp.vic.gov.au,
or
andrew.jackomos@ccyp.vic.gov.au
Yours sincerely
Bernie Geary OAM
Principal Commissioner
Andrew Jackomos PSM
Commissioner for Aboriginal
Children and Young People