Friday, 8 May 2015
To:
Professor Helen Rhoades
Chair, Family Law Council
c/- Family Law Council Secretariat
Attorney-General’s Department
3-5 National Circuit
BARTON
ACT
2600
SUBMISSION TO FAMILY LAW COUNCIL
ATTORNEY-GENERAL’S REFERENCE REGARDING CHILD PROTECTION
On behalf of the Family Law Practitioners Association of Tasmania, 1 we thank the Family Law Council for
the invitation to comment in regards to the Attorney-General’s Terms of Reference regarding the
relationship between child protection and the family law system. We also thank your secretariat for the
extension of time in which to provide this submission.
We will refer to the questions raised in your letter of March 2015 in the order provided:
1. Question 1, Part I: Two Places, Two Mindsets
1.1 In Tasmania, child protection proceedings are not dealt with by specialist judiciary, but instead by
magistrates sitting in a different division of the Magistrates Court of Tasmania. Legal services for
child protection have now been assigned to the state Director of Public Prosecutions.
1.2 FLPAT notes that litigants who come to the attention of both the child protection and family law
systems tend to be:

Reliant on government benefits and/or of modest means;

Have multiple risk factors facing the family such as mental health issues, homelessness,
offending, drug use, family violence, low IQ, sexual abuse allegations or alcohol abuse.
1
The Family Law Practitioners Association of Tasmania Inc. (FLPAT) is the professional association for family
lawyers in Tasmania. With the majority of the state’s family and child protection lawyers as members, we provide
advocacy, continuing legal education and networking opportunities and meet regularly with state and federal judiciary
and affiliated stakeholders regarding the family law and child protection spheres.
1.3 Given the parlous state of Legal Aid in Tasmania at present, most of them are self-represented
litigants in each jurisdiction.
1.4 FLPAT agrees with the view that the same issues are being ventilated in both courts; however, in
the Federal Courts the process tends to be Court-managed and driven2 whilst in the State Court the
process is still managed and driven mainly by the prosecuting authority (the DPP).
1.5 There are provisions for Magistrates to conduct what are known as “section 52 conferences” in
State-based proceedings, but in practice these are run by a mediator employed by the Court.
Anecdotal experience is that they are far more effective in driving and case-managing the
proceedings and giving an early indication of outcome if state Magistrates were to run them more
often.
1.6 We address some of the practical matters in this regard below in addressing some of the other
questions posed in the Request for Comment. However, proceedings in state courts are affected
by:
1.6.1
State judiciary who are not specialised in this area, operating in facilities and systems
designed primarily for criminal law jurisdiction. In this regard, Families involved in Child
Protection proceedings mix in the same buildings with those involved in criminal law matters.
Children attending Court are exposed to what can be a confronting cohort of litigants. It is
entirely inappropriate for families and young children to be physically lumped together with
those accused of offences and crimes. The Magistrates Court does try to mitigate this by
listing matters at different times but the problem persists. There is no separate Court
building or entry to the Court precincts. Criminal matters are heard either side of child
protection matters.
1.6.2
Child protection being represented in court by the Director for Public Prosecutions and
failing to comply with court directions designed to ensure procedural fairness.
1.6.3
State Magistrates routinely interview children directly. Given the physical precincts of the
court, to say this is not occurring in a child-friendly environment is an understatement. It is a
vastly different experience to proceedings in the Federal Courts, where children do not meet
the judicial officer as a general rule.
1.6.4
Tasmania does not have specialist child protection Magistrates. Magistrates are part of the
general list and decide a wide range of matters - civil, criminal and coronial. Federal Court
judicial officers in Tasmania determine exclusively matters brought pursuant to the Family
Law Act. FLPAT is concerned, that in some instances, the Magistrate may not have the same
degree of expertise in dealing with children and dealing with child-related matters as do their
Federal counterparts, simply by virtue of the wide range of matters which they must deal
with on a daily basis.
2
Particularly noting the case management and process in the Magellan program
1.6.5
The examination of whether a child is "at risk" in a parent's care rarely involves an
examination of the positive steps that parents have taken. Given the focus on risk and
whether negative conduct has occurred, parental reactions to proceedings view them as
highly prosecutorial, and view a state agency as trying to remove their child from their care
rather than acting in concert with the family. This litigant view of "the state vs the individual"
is more reminiscent of criminal proceedings.
1.7 Equally, FLPAT notes two common sets of events which indicate cultural problems within child
protection and their attitude to the family law sphere:
1.7.1
Child protection is often consulted immediately before the commencement of
proceedings – either by practitioners, or litigants directly - about whether they intend to
intervene or take action. This is often in the context of a party making an application that a
child spend time with them (or be recovered to them under a Recovery Order) but
allegations have previously been raised against that parent. The child protection response
is unfailingly along the lines of "we do not seek to act at this time as the child is
appropriately protected. We will review our position if this circumstance changes." This is
not illuminating as to any future child protection action, nor gives any indication of whether
they will treat the matter with seriousness.
1.7.2
No member can recall child protection acceding to a section 91B request to intervene.
Indeed, Tasmanian child protection has gone to great lengths to not intervene in a case,
including to the extent of a Family Court Full Court appeal. However, there are many
anecdotal accounts of Child Protection either simultaneously issuing proceedings in the
State Court or issuing proceedings shortly after.
1.8 FLPAT takes the view that a greater willingness to intervene may be a more proactive and
streamlined approach. There is, however, a cultural unwillingness for Child Protection to be
involved outside its comfort zone of the State jurisdiction.
2. Question 1, Part II and Questions 5 and 6: Early Information Sharing and solutions
2.1 FLPAT submits that information sharing at an early stage in proceedings in critical.
2.2 The present default position is that, in Commonwealth proceedings, subpoenas issue for any child
protection file – voluminous, repetitive, heavily redacted, a heavy administrative burden to supply
and store, and difficult for litigants (especially self represented litigants, or for those paying the
costs of a practitioner to deal with and inspect.) The subpoenas often disclose some thousands of
pages.
2.3 Equally, FLPAT is not aware of any situation where state courts have subpoenaed a federal court
file. They only have information generated from Family Law proceedings if there has been an order
that a Family Report, Final orders or similar are to be sent to Child Protection – though again,
anecdotally, we are unaware of this having occurred. It needs to be recalled that the majority of
private civil litigants are not likely to require intervention by child protection.
When child
protection receives a notification, it ought request any formation from the Family Law Courts and
have basic information supplied in electronic form.
2.4 Notification Summary: FLPAT submits that there be more streamlined, automatic sharing of
information. Having received the Notice of Risk filed in each case, Child Protection ought to
provide a summary of any notifications received. This may not take any more time than the
current time-consuming task of responding to subpoenas and should replace subpoenas filed. It
would also ensure information is before the Family Law Court when both parties are
unrepresented.
2.5 Early Reporting: One option which has been presented would be the introduction of, for lack of a
better phrase, "Initial Magellan" reports from Child Protection in cases where the Notice of Risk
presents issues of concern to the judicial officer or Independent Children's Lawyer. The benefits of
such a process involving streamlining of the disclosure process, and assisting all involved to
concentrate on those issues of greatest relevance.
2.6 The request for such a report would be anticipated as originating from a judicial officer or registrar
in chambers, or upon written request of an ICL. Such reports would take the form of a one-page
pro forma document, outlining:
2.6.1
The names of the children and parties involved;
2.6.2
Whether there has been any past or current proceeding under state child protection
legislation, and if so, the date and nature of any Order made;
2.6.3
Basic details as to any substantiated or unresolved allegation brought to the attention of
child protection - as a starting point, the year and nature of the allegation raised;
2.6.4
Any intended action to be taken by child protection, having received the Notice of Risk.
2.7 Report Disclosure: FLPAT notes that the Family Courts already routinely make orders providing child
protection with Expert and Family Reports. The opposite does not occur. It would be helpful if,
when a Form 4 is received, any such reports are provided to the Family Court. This may require a
change to section 103 of the Children’s Young Persons and their Families Act 1997 but more likely
can be effected by a memorandum of understanding between the entities (as currently exists in
any event with respect to subpoenaed information).
2.8 Technology Access: The advance of technology (for example, subpoenaed documents are now all
provided in disc form) allows easier information flow. There would be practical and administrative
benefits if child protection could be added to the Portal (both as a party, and in regards to any
documents released.)
2.9 Expert Collaboration: FLPAT also considers there would be benefit from professional collaboration
between Child Protection Professional practice advisors (i.e. psychologists) and the Family
Consultants to ensure a common view point in looking at issues of risk, family attachment,
assessment of family violence and parental capacity, and reporting to courts around these issues.
2.10
Access to Community Services: Finally, FLPAT notes that families involved in child protection
litigation are routinely linked in to a service such as Baptcare, the Salvation Army and the like who
offer intensive Family support and who report to Child Protection. The experience is that this does
not occur by way of referrals by the Federal Courts, presumably because the same funding
arrangements do not exist.
3. Question 2: Problems for All
3.1 Given all the issues raised above, practitioners find it difficult to adequately explain to clients (who
are usually at crisis point anyway) the legal complexities of the difference in approach between the
Courts.
3.2 The reality is that in the current funding climate, these most vulnerable of clients are regularly
refused Legal Aid for either lack of merit or a lack of available funds. As a result the ICL (or
Separate Representative) and the Courts are dealing with self-represented litigants. This usually
means matters take longer to resolve in an emotionally charged environment.
3.3 The capacity for some families to enter into Family Court consent orders (with the Secretary either
as a party or consenting to the order and often with extended family members involved) is likely to
remove more matters from the Child protection jurisdiction and allow extended family the
autonomy to parent children in the absence of the Secretary being the legal guardian.
3.4 In the past, the Legal Aid Commission prioritised funding such clients. This is no longer possible
unless Legal Aid funding is increased. It may be more cost-effective in the long term as it causes
less matters to proceed to hearing, and a smoother transition between a child protection order and
(as the family becomes better functioning) a Family Law Act order.
3.5 Practitioners also report continuing confusion between parents and child protection staff as to the
concepts of "guardianship" and "custody" under the state child protection legislation, and
"parental responsibility" under the Family Law Act, and who should hold responsibility, decision
making power, and be able to access information regarding major long-term issues regarding
children subject to state Orders.
3.6 Other options which may assist are:
3.6.1
For the Federal Courts to have the power to compel the Secretary to intervene; or
3.6.2
For a change in culture which would see the Secretary intervening more often, if only for a
limited period; or
3.6.3
State Magistrates being able to make consent orders pursuant to the Family Law Act; or
3.6.4
Reform by the state system to introduce specialist Child Protection Magistrates.
4. Question 3: The Family Law Act in state courts
4.1 FLPAT is of the view that, theoretically, there would be benefits in state courts having greater
ability to exercise power under the Family Law Act. However, in practice, this would be
unworkable.
4.2 State courts have limited existing power under section 68R to vary parenting orders when making
or varying Family Violence Orders. We are unaware of any report of this power having been used
by a State Magistrate.
4.3 There is a clear benefit in enabling Children’s’ Courts to make parenting orders. Often there are
family members who may more properly be given parental responsibility rather than the Secretary.
Whilst this can be done in the context of a care and protection order, Family Law Act orders last
until they are changed rather than being finite. Also, towards the end of a care and protection
order, for the family to be able to move seamlessly into a Family Law Act order would ensure
stability for children. At the moment they need to access another jurisdiction, and these families
are often not equipped to navigate the Federal Courts by themselves.
4.4 However, for the reasons stated under Question 1, Part I above, State Magistrates have very
different training and experience from federal judiciary and a divide in practice and understanding
may become apparent. There is also the issue of where appeals may lie.
4.5 There is also the administrative issue of Legal Aid funding – at present federal matters and statebased matters are funded by the Commonwealth and the State, respectively.
4.6 Given the current logistical, training and interface issues with state courts, FLPAT would not
support further powers under the Family Law Act being transferred to state courts.
5. Question 4: Child protection powers in the Family Court / Federal Circuit Court
5.1 FLPAT is strongly supportive of the Federal Courts being able to exercise power under state child
protection legislation.
5.2 FLPAT recognises the nature of the constitutional and practical considerations in transferring state
child protection powers to the Commonwealth judiciary, particularly given the political
considerations around responsibility and referral of powers, and the limitations of Re Wakim; Ex
parte McNally.
5.3 However, we note the experience of Ray and Anor & Males and Ors.3 In that case, child protection
was requested to intervene, and refused. The judicial officer required their joinder to the case,
which was overturned on appeal to the Full Court. The greatest irony of the case is that child
protection did, after this appeal, intervene in the case – at great legal cost to the taxpayer, and not
delaying their participation in a case where two children were at real risk.
5.4 Equally, however, it would not be practical for Federal Courts to take on the primary workload of
child protection in the current resource-poor environment. For instance, an Assessment Order
under the CYPFA only lasts for 28 days, and is capable of extension only for a further 28 or 56 days.
The hearing of the Application may be adjourned only once, and for no more than 14 days, except
in special circumstances.4 Equally, proceedings for a Care and Protection Order must proceed from
Application to Hearing within 10 weeks, except in exceptional circumstances.5 State judiciary, to
their credit, are often able to comply with some margin of error and the legislative intention of
prompt investigation and resolution of abuse allegations is appropriate to the nature of the cases
involved.
5.5 Given that the duration of a Care & Protection Order hearing often exceeds one day (and in the
experience of practitioners, can run to 5 or 6 days) it is FLPAT's view that it is beyond the current
capacity of the Commonwealth courts to provide these services, or the additional 2 to 3 judicial
officers to meet the workload around the state, particularly where warrants or urgent orders are
sought.
5.6 FLPAT considers that the duplication of assessments, interviews, conferences, negotiations and
litigation between the two systems is a gross abuse. Leaving aside the cost to the public purse, the
3
[2009] FamCA 219 per Benjamin J
Children Young Persons and their Families Act 1997 (Tas.) s. 25
5
Children Young Persons and their Families Act 1997 (Tas.) s. 45
4
effect on the mental health of parties and the greatly increased risk of systems abuse on children
cannot be justified. We are aware of, and commend, the views of Julie Jackson in her paper
Bridging the Gaps between Family Law and Child Protection in regards to the necessity of having a
single court determining cases where there are both child protection and parenting order concerns.
5.7 A practical measure to ensure that this does not occur would be to enable family law judicial
officers to also hold simultaneous state commissions in the relevant Supreme or Magistrates Court.
Whilst the technical and constitutional issues would be significant, the training and expertise that
these judicial officers could bring to family law matters involving abuse allegations, and the
reduction in the risk of systems abuse and expenditure, would have great advantages.
5.8 The unanimous view of those practitioners who have provided their feedback to FLPAT is that there
is merit in federal courts being able to take on board limited jurisdiction to deal with child
protection matters, given their expertise in dealing with children and knowledge of relevant social
science. FLPAT presents the Dual Commission model as one possible way of helping this to occur.
5.9 A secondary way of trying to prevent conflict between courts would be the mandatory introduction
of pre-proceeding Signs of Safety Conferences (noting the Western Australian practice in this
regard.) This would allow all involved to know the parties' views, expectations and the most
appropriate way to deal with matters.
5.10 In this regard, again, we commend the views of Julie Jackson in her report regarding the benefit
and process that such a Conference could take. If such a Conference was unsuccessful in preventing
simultaneous federal and state proceedings, it would be appropriate that the child protection
application be removed to the federal court, and heard together.
6. Finally, we have to hand the submissions of Mr David Lewis, Barrister, as a member of the Bar
Association of Tasmania. We concur that Mr Lewis is a senior and experienced practitioner in this
area and that his experiences and views of the current system are reinforced by the
representations of our own members. We commend his views to the Council.
Yours faithfully,
Joseph Petersen (Chair), on behalf of
Family Law Practitioners Association of Tasmania Inc.