Submission to Family Law Council
Your details
Name/organisation
Child Protection Practitioners Association of Queensland (CPPAQ)
Margie Kruger, Chairperson
Contact details
margiek@ryankruger.com.au
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
This submission to the Family Law Council reference on Families with Complex Needs and the
Intersection of the Family Law and Child Protection Systems has been developed by the Child
Protection Practitioners Association of Queensland (CPPAQ). CPPAQ (www.cppaq.com.au/)
was established in 2010 with members representing a wide range of professional disciplines
working
in
child
protection,
such
as
legal,
medical,
psychology,
and
social
work. CPPAQ's priorities are to support multidisciplinary professional development relevant to
child protection law, policy and practice; and to enhance collaborative professional relationships
and practice development in the child protection and legal systems through networking and
information sharing.
We submit that there are many benefits for families with complex needs of enabling the family
courts to exercise the powers of relevant state and territory courts, including Children's Courts,
and vice versa.
The key questions within the terms of references that we will address in this submission – as
guided by the areas of research and practice expertise of our members – are:
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?
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?
6. How could the sharing of information and collaborative relationships between the family courts
and child protection agencies be improved?
Experiences of children and families involved in both child protection and family law
proceedings
Families involved in both child protection and family law proceedings have complex
needs. They often experience poverty, lack of education, unemployment, alcohol and substance
misuse, disability, domestic violence, and/or mental illness. Families may experience additional
difficulties accessing appropriate services and support outside urban centres. Aboriginal and
Torres Strait Islander children and families are over-represented, particularly in relation to child
protection proceedings. Courts cannot remedy situations that are caused by social disadvantage
and a social services system that cannot adequately respond to need. However, we note the
need for integrated responses to deal with issues facing children and young people, as per
recent research conducted by Tilbury and Mazerolle1 with relevant Queensland stakeholders
(including judges, magistrates, police, community services, justice, children’s advocacy, and
legal aid). An integrated response recognises the impossibility of separating children’s social
welfare needs from their child protection needs.
We recommend a therapeutic jurisprudence approach to dealing with families involved in
both child protection and family law as well as a focus on early resolution of matters. This will
promote a focus on outcomes that benefit children and families and reduce exposure to lengthy
and complex court processes. Early resolution of matters could be achieved through an
improved case management and disclosure system, supported by rules of court and practice
directions in the Children’s Court. Legal Aid Queensland supported such an approach in their
submission to the Queensland Child Protection Commission of Inquiry2 (herein referred to as the
LAQ submission). An improved case management system for child protection litigation should
establish a defined litigation process by outlining a sequence of events that would progress
matters in a child focused, efficient and timely way. The case management system should
provide for early identification and location of parties and relevant non-parties and the joining of
applications where there are both child protection and family law issues.
The expansion of the Magellan program, which currently operates in the Family Law
Courts, could provide a useful basis for improved case management. This judge-led case
management approach requires early consideration of the matter, allocation of additional
resources, and the appointment of an Independent Children’s Lawyer. In particular, we
1
Tilbury, C. & Mazerolle, P. (2013) The Childrens Court in Queensland: where to from here? In R Sheehan and A
Borowski (Eds), Australia's Children's Courts Today and Tomorrow, Springer Publishing Company, New York.
2
Legal Aid Queensland (2012). Legal Aid Queensland submission to the Queensland Child Protection Commission of
Inquiry, p. 11.
recommend the development of a case docketing system that assigns one judicial officer to
oversee one matter from commencement to end.
We also recommend that Court Ordered Conferences be utilised more effectively in order
to reduce complexity for families involved in both family law and child protection proceedings and
assist in early resolution of matters. We suggest that an initial COC be required early in
proceedings to deal with the threshold issue of whether the child (or children) is in need of
protection and/or to deal with disputes in relation to interim placement and contact arrangements.
Full disclosure of positions and evidence should take place in advance of the first COC. A
second COC could occur prior to final hearings to provide a final opportunity to settle the matter,
and if that cannot be achieved, to narrow the issues in dispute in order to reduce the time of any
hearing. In complex matters, there may be benefit in COCs occurring at appropriate times in the
course of the matter prior to interim hearings. The timing of COCs would be determined by the
court as part of the overall case management of the proceedings.
We also draw attention to the difficulties experienced by disadvantaged and vulnerable
families in gaining funding from Legal Aid. As reported in the Queensland Law Society
submission to the Queensland Child Protection Commission of Inquiry 3 (herein referred to as the
QLS submission), it is particularly difficult for families involved in family law proceedings to
secure funding from Legal Aid when they are already involved in a child protection proceeding or
where a child protection order already exists. In many cases, Child Safety will not withdraw child
protection proceedings until a parent has obtained appropriate family law orders. This causes
particular problems in circumstances where the Department’s child protection concerns would be
resolved by appropriate family law orders but families are unable to obtain legal representation in
the Family Law Courts due to the child protection proceedings or existing orders. This situation
can result in significant delays in proceedings as well as adverse outcomes for families and
children.
We understand that, in practice, the Department is able to provide written confirmation to
Legal Aid that appropriate family law orders would resolve the concerns identified in the child
protection proceedings, and on that basis Legal Aid funding for family law proceedings would be
considered. We suggest clarification for relevant stakeholders regarding their roles and
responsibilities in relation to complex matters regarding both family law and child protection.
Ensuring that vulnerable families are able to obtain appropriate legal support will assist in early
resolution of complex matters and improved outcomes for both children and families.
3
Queensland Law Society (2012). Submission to Queensland Child Protection Commission of Inquiry, p. 36-37.
Problems faced by practitioners and services in supporting families involved in both child
protection and family law proceedings
Relevant stakeholders have reported (in research conducted by Tilbury and Mazerolle4)
that while current child protection legislation is generally effective – the availability and quality of
services was a major barrier to reform. Child protection and family support services have serious
resource limitations.
While many urban and some regional courts deal regularly with children’s matters
(weekly), most courts have less than ten children’s matters each year, so their capacity to build
up expertise is limited. There can be a lack of positive working relationships between
stakeholders in the Court and lack of understanding of the roles of different players. Relevant
stakeholders – including police, prosecutors, legal practitioners, Child Safety Officers, youth
justice workers, magistrates and judges – all require expertise in their own fields and an
appreciation of the disciplinary knowledge and roles of other stakeholders. This may require
training in legal processes for Child Safety staff. The child protection workload of the Children’s
Courts has increased in the last decade with legislative changes such as the introduction of a
wider range of orders in 2000 and requirements on Magistrates to review child protection case
plans in 2004. Professional education for magistrates and judges is suggested regarding
consistent interpretation of relevant Acts (particularly the Youth Justice Act 1992 and Bail Act
1980), child development and the impact of poor environments on children, and communication
skills.
Finally, stakeholders have also identified issues with the structural separation between
the Children’s Court and other courts and tribunals. One strategy to ameliorate these concerns
would be a unified court to hear matters related to both family law and child protection matters in
combination with the improved case management approach recommended in relation to point 1
of the Terms of Reference. When a notification is received by the Department, the relevant
investigations and assessments need to be undertaken, to allow the Department to proactively
determine as soon as possible whether to simply provide information for use in family law
proceedings or alternatively to commence child protection proceedings. It is when parents make
child maltreatment allegations against each other to the statutory department that the benefits on
an integrated approach between the courts is most evident.
Strategies for improving information sharing and collaboration between family courts and
child protection agencies
There is currently no proper disclosure regime for child protection litigation in Queensland.
Consequently, legal representatives for parties must rely on subpoenas for the production of
documents held by the child protection Department, which can result in significant delays.
4
Tilbury & Mazerolle (2013), op. cit.
We submit that an improved case management approach – which includes a case
docketing system, aspects of the Magellan program, and increased disclosure between relevant
bodies – may benefit information sharing and collaboration. Information and assessments from
the Department are generally already needed to inform the final resolution of Magellan matters.
The ‘Magellan reports’ summarising relevant details known to the Department provide useful and
structured information for consideration of the parties and the Court. The availability of an officer
within the Department to provide a liaison between the family law proceeding and Departmental
caseworkers was also reported as beneficial.
Thus, a case management approach which includes the provision of a summary report
and use of a liaison officer within the child protection department would benefit all matters being
dealt with in the Family Law Courts and child protection proceedings. Implementation of this
proposal would likely require allocation of additional staff and resources but would enhance
timely information-sharing.