SUBMISSION TO FAMILY LAW COUNCIL
Families with Complex Needs and the Intersection of the Family Law and
Child Protection Systems
Name/Organisation
David Fanning
Magistrate
Neighbourhood Justice Centre
Collingwood, Melbourne Victoria
Contact Details
davidfanning@magistratescourt.vic.gov.au
The views expressed in this paper are my personal views informed by my experience over the 8
years as the Magistrate of Australia’s only community problem solving court as well as my
extensive experience as both a social worker and lawyer in the area of child protection and
family law. The views expressed in this paper do not represent the views of the Magistrates’
Court of Victoria nor the Neighbourhood Justice Centre.
Introduction
 The formation of the Family Court of Australia (the Family Court)
represented a fundamental change in the federation concerning the law
relating to children. This saw the fragmentation of responsibilities across
State and Territories (States) and Commonwealth jurisdictions with
‘private’ family law becoming a federal matter enacted through the Family
Court and ‘public’ family law the responsibility of States enacted through
Children’s
Courts.
The
consequence
was
to
create
a
structural/jurisdictional barrier that works against a single cohesive
system concerning the law relating to children. Overtime this barrier has
grown in significance as courts are faced with responding to child
protection matters within the context of increasingly complex family issues
that can call for solutions across jurisdiction boundaries.
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 The States are responsible for the protection of children who are at risk of
harm in the care of their families. This is enacted through State (intended
here and elsewhere to also be referring to Territory) authorities (most
usually ‘welfare’ or ‘child protection’ departments) and Children’s Courts.
State legislation enables welfare ‘interveners’ (as well as in some instances
State police officers) to bring matters before State Children’s Courts for
adjudication.
 Within Australia’s federal system, the protection of children has commonly
been understood as a responsibility that primarily resides with the States
because of the location of designated Child Protection programs but the
reality is that the Family Court (intended here and elsewhere to also be
referring to the Federal Circuit Court and the Family Court of Western
Australia) also plays a substantial role in the protection of children.
 Child protection is a fundamental responsibility of government. It is not
only a responsibility of the States but also of the Federal government
enacted through the Family Law Act.
 The Family Court is responsible for determining arrangements for the care
and parenting of children in the context of parental separation. The Family
Court commonly deals with allegations about the safety, abuse and neglect
of children as part of the disputes between separated parents when making
parenting/custody and access orders.
 For those not involved in the family law system, the Family Court can
mistakenly be viewed as a venue for resolving parental disputes that at
times involve issues relating to children rather than a the jurisdiction that
has fundamental responsibilities for the protection of children similar in
nature to the work of State Children’s Courts.
 Families do not typically ‘voluntarily’ bring their own matters before State
Children’s Courts but are compelled by State welfare authorities with
coercive powers who are able to initiate proceedings in Children’s Courts.
In contrast, a family member initiates Family Court matters ‘voluntarily’.
 Whilst the mechanisms that bring families before State Children’s Courts
and the Family Court are different, the substantive matters that must be
resolved have become progressively more similar. Families who seek to
resolve their parenting disputes post separation are increasingly affected
by multiple and complex risk issues including child abuse and neglect,
family violence and mental illness. Such family complexity and the
associated risk issues for children has long been standard fare for State
Children’s Courts.
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 Although the different legal systems relating to ‘private’ family law and
‘public’ family law have different primary aims and imperatives (Higgins &
Kaspiew, 2011), the issues relating to children’s safety and welfare are
common across the two systems.
 The close relationship between the two parts of family law and the
common issues that are dealt with in relation to determining the ‘best
interests’ of children have been somewhat obscured in Australia due to the
separate jurisdictional arrangements. In contrast, in England and Wales,
there is a single family justice system which deals with both ‘public’ and
‘private’ family law within a unified court structure making legal solutions
to cases with aspects of both more readily available. Similarly, in the USA ,
although a federal system of government, responsibility for both ‘private’
and ‘public’ family law rests with States which supports permeability as
well as innovation with family courts also often having jurisdiction for an
array of related matters such as family violence, juvenile justice, adoption,
termination of parental rights, etc.
 However, the reality is that Australia does have a jurisdictional separation
between ‘private’ and ‘public’ family law and this is the context within
which any reforms to enable greater permeability across the two systems
and to build system wide coherence must take place.
 The reference to the Family Law Council seeks comment on two
mechanisms that may benefit families by creating greater permeability
across the system - enabling transfer of matters between federal and state
jurisdictions; and enabling family courts to exercise powers of relevant
state courts, including Children’s Courts, and vice versa.
 This submission as well as making comment on these options points to the
relevance of a therapeutic problem-solving justice method to the Family
Court as having the potential to modernize the court’s operation in respect
to the protection of children.
 Whilst the ability to transfer matters and cross vesting powers may hold
important overall benefits to the coherence of the system across ‘private’
and ‘public’ family law, the vast majority of cases will remain to be
determined in each jurisdiction and attention should not be lost on looking
for means to enhance how these core responsibilities are enacted.
 Problem solving justice has the potential to yield benefits for the Family
Court relating to: identifying and responding to the safety and welfare of
children; understanding and responding to complex spousal conflict;
assessing parenting including the impact on parenting of various and
possibly co-existing social problems; assessing future parenting capacity
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based on creating opportunities for change and assessing whether change
is likely to be sustainable, thereby enabling better substantive outcomes as
well as reducing the number of lengthy trials.
 This submission contends that alongside such possible changes as the
ability to transfer matters between jurisdictions and cross vesting powers,
the Family Court could consider piloting a therapeutic problem-solving
justice approach aimed at enhancing the court’s response to families with
complex needs and strengthening the protection of children and the
response to family violence. Trialing a problem-solving approach could
demonstrate the potential to link the court with a range of services able to
both assist families as well as provide broader expert information to
judicial decision-makers.
Therapeutic problem solving justice
 The development of problem solving courts represented a new approach to
the delivery of justice when it was developed in America over two decades
ago. The approach is now developing considerable momentum in Australia
as a means of courts responding to an array of complex social and related
legal problems.
 Therapeutic problem solving courts are underpinned by a problem solving
method which seeks to address the underlying problems of
litigants/accused persons, victims and communities through the
application of three organizing principles:
1. a problem solving orientation which is directed more broadly than
individual rehabilitation
2. collaboration or the development of a joined up approach both
within the justice system and with external service providers and
community members
3. accountability which focuses on promoting compliance of
litigants/offenders in addressing their problems and with interim
and final orders, the provision of quality, tailored services to
facilitate litigants/offenders in this endeavor and judicial monitoring
of progress.
 The problem solving justice movement initially found expression in the
development of specialist courts. Broadly, four specialist models of
problem solving courts initially arose – drug courts, mental health courts,
domestic violence courts and community courts. Drug, mental health and
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domestic violence courts have specialist focus on each of these particular
social issues. Community courts provide a combination of mainstream
justice together with specialist responses to drug, mental health, domestic
violence and other particular social issues within a defined geographic
area. This means that community courts provide a much fuller range of
justice services to a defined geographic area. Community courts have
strong links to the network of services within the geographic area it serves
and these services are involved in community building activities as well as
the provision of service to individuals.
A problem solving focus can be used in non-specialist or traditional court
environments either in part or fully. Depending on the demands of the
particular jurisdiction, a problem solving approach is not necessarily the
only method used. Indeed, one of the skills of the judicial officer is the
ability to shift between problem solving and a more traditional courtroom
methods, to see the potential of when to use problem solving and to have
the skills to give effect to this method.
Problem solving justice initiatives, both specialist and employed in more
traditional settings, are increasingly widespread and varied internationally
but all share a common feature – at its heart, problem solving courts have
an outlook that emphasizes outcomes over throughput. Problem solving
courts focus on creating behavior change beyond the point in time of the
resolution of the legal issues. It focuses on achieving better substantive
outcomes that are sustainable over time and thus eliminate or reduce the
cycle of matters coming back before courts.
Like all courts, problem solving courts must provide procedural fairness
for litigants/accused persons and operate efficiently but this outcome
outlook means that such courts seek not only to address the presenting
issues but what sits behind them. Problem solving courts are not built on a
naïve presumption that underlying problems will always be able to be
immediately or necessarily addressed but provides for structured and
purposeful opportunities for change. This has a positive impact for
individuals and the communities within which they exist but also reduces
the ‘churn’ within the legal system.
Therapeutic justice is a central component of problem solving. Therapeutic
justice is given expression in two main ways. One relates to the judicial
officer’s courtroom management and the other to the provision of services
to the litigant/accused.
Problem solving courts orchestrate linking litigants/accused to services
relevant to addressing the issues which have contributed to the court
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appearance. A vital component is the judicial officer’s ability to motivate
and leverage the person’s own sense to agency for change. Regardless of
the level of service offered, change does not occur without individuals
themselves taking responsibility for change and making use of
opportunities for change. The ability of problem solving judicial officers to
promote change requires engaging with the person rather than equating
them only with the sum of their problems.
 Therapeutic problem solving justice is sometimes mistaken characterized
as ‘soft’ justice and as ‘turning judicial officers into social workers’. In fact,
problem solving courts originated in criminal jurisdictions with the policy
of being ‘tough on crime; tough on the causes of crime’. Therapeutic
problem solving court management is not about the judicial officer being
‘nice’, ‘sympathetic’, or ‘friendly’ – it is certainly not about a sentimental
approach that has judicial officers leaving the bench to comfort or
congratulate defendants. It is telling that many defense lawyers would
rather have their client appear before a traditional court rather than a
problem solving court as the method together with judicial continuity
results in more sustained demands on their clients.
 Judicial demeanor in a problem solving court, as in any other court,
displays neutrality and objectivity but it is not passive and detached.
 Therapeutic problem solving judicial officers require traditional legal skills,
additional non legal skills and a mindset directed towards outcomes. The
nature of the outcomes will depend on the jurisdiction.
The Neighbourhood Justice Centre (NJC)
 The NJC is a multijurisdictional community court established in 2007 to
service the City of Yarra, an inner municipality of Melbourne. It remains the
only community court in Australia. The policy which informed the
development of the NJC was to demonstrate a new and innovative way of
responding to crime and other forms of social disorder, disadvantage and
conflict within the City of Yarra. The municipality has had one of the
highest crime rates in Victoria, contains the most densely populated areas
in Australia and has a very high proportion of socially disadvantaged
people. It is the home of large numbers of newly arrived families and
individuals to Australia. The NJC was established as a therapeutic problem
solving court and the Red Hook Community Court in Brooklyn, New York
and the North Liverpool specifically informed its development.
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 The multijurisdictional community court is part of a broader community
justice approach that emphasises the importance of engagement with the
community on things like crime prevention and other initiatives that
respond to the needs of the community and enhance the community’s
confidence in the justice system. It delivers justice at a local level in the
context of a defined local community.
 The NJC court operates a number of jurisdictions: a Magistrates Court of
Victoria with jurisdiction to hear all Criminal Division matters (except for
serious sexual offences); Family Violence and Personal Safety Intervention
Orders; a Children’s Court (Criminal Division); a Victims of Crime
Assistance Tribunal (VOCAT); and a Victorian Civil and Administrative
Tribunal (VCAT) which hears residential tenancy matters, guardianship
matters and a range of civil disputes.
 The suburbs of Fitzroy and Collingwood within the City of Yarra were
developed on the land of the Wurundjeri people and whilst the number of
Aboriginal residents has decreased over the years, it remains a significant
meeting and gathering place for Aboriginal people. In response to the
needs of the Aboriginal community in the City of Yarra and after Aboriginal
Elders and service providers were consulted, the NJC instituted specific
Aboriginal Hearing Days for which the Victorian Aboriginal Legal Service
and Aboriginal support services are in attendance on site.
 A Koori Justice Worker is employed at the NJC to provide cultural and
spiritual comfort and case management services to Aboriginal people court
and services as well as being a key figure in the Centre’s community
engagement activities.
 The NJC has a single courtroom and a single Magistrate. It is a high volume
court (approximately 3,600 cases were finalised in the year 2013/14)
which demonstrates the applicability of therapeutic problem solving not
just to specialist courts with small listings such as a Drug Court..
 A key aspect of the NJC model is the presence an array of justice services
and social services staff located at the Centre which facilitates services
operating in an integrated and coordinated way. These include – police
prosecutors, Legal Aid and other legal advice services, drug and alcohol
counseling services, family violence and victim support services, mediation
services, Community Corrections and financial counselling services and
mental health services. Volunteer services offering support are also a
presence at the Centre.
 Also central to the NJC model of problem solving justice is the Client
Services Team whose members provide assessment, some treatment and
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referral services at the request of the Court as well as to residents who self
refer for assistance. This team is the vital triage point providing advice to
the court and linking those who appear before the court with relevant
services. This team also manages the flow of information from these
services back to the court.
 It is mistaken to think that the NJC is a ‘Rolls Royce’ approach to justice that
holds no lessons for other jurisdictions. This misconception can flourish in
view of the array of services that are seen to be available to the court. The
availability of these services in itself represents an innovation. A limited
number of these services were funded at the establishment of the NJC. Most
are co-located at the NJC through negotiation of the NJC service model with
services already present in the City of Yarra who saw the benefit that
would flow to service users through participation in the Centre’s
innovative model and a co-located presence of their services at the NJC. All
these arrangements are reflected in agreements negotiated between the
NJC and each service. The NJC has also developed relationships with a
range of other service providers within the City of Yarra that do not have
co-located presence at the centre.
 This has been a successful model of the NJC linking with other vital services
and being able to benefit from their ‘added value’. It holds valuable lessons
for other courts interested in the idea of linking with services and the
adoption of a community justice approach. Since the commencement of the
NJC’s operation, crime has decreased in the municipality by 30 per cent,
recidivism rates (both measured by actual reoffending and the seriousness
of reoffending) has significantly reduced and the compliance rate of
Community Correction Orders is consistently over 10 per cent above the
state average.
 The NJC is a model of justice that provides insights into innovation,
application of therapeutic problem solving and how courts can link with
other services.
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Terms of Reference Questions 1 and 2 – transferring matters across
jurisdictions and cross vesting powers of each jurisdiction to the other.
 It is important that there should be the highest confidence in the Family
Court’s capability in relation to the protection of children.
 There is self-evident appeal and benefit to be gained from greater interjurisdictional cooperation.
 The ability to transfer matters across jurisdictions and to cross vest the
powers of jurisdictions holds intuitive appeal as a legislative means of
achieving greater inter-jurisdictional cooperation and permeability.
 If the lack of these powers in the current State and Federal laws reduces
the ability of either, or both, ‘private’ or ‘public’ family law to be fully
effective in protecting children, then such legislative provisions or other
changes to achieve the same outcome are necessary.
 However, within Australia’s federal system of government, there is a
history in some program areas where the efficient and effective delivery of
services to the public is hindered by overlapping and confused
responsibilities. Any reforms to improve cooperation and permeability
across State and Federal levels relating to family law must avoid diluting
clear lines of primary responsibility as well as inefficiencies that can arise
from a duplication of powers.
 The proposals regarding transfer and cross vesting powers warrant careful
consideration to examine whether these would address the difficulties and
frustrations currently experienced within the jurisdictions whilst being
cognizant to avoid unintended consequences.
 Any reform proposal must to be based on a clear understanding of the
nature of the problem, its dimensions, scope and overall significance.
Briefly considering the ways that the ‘private’ and ‘public’ family law
systems come into contact with each other helps to give context to the
utility of transfer and cross vesting powers.
 There are a variety of ways in which State welfare authorities can come
into contact with the family law system.
 State welfare authorities through their statutory Child Protection programs
operate as ‘gatekeepers’ in determining whether reports of alleged child
abuse and neglect reach the threshold for direct intervention and
investigation of reported children’s circumstances. At the stage of receiving
reports of alleged abuse and neglect, Child Protection programs have a
pattern of screening out matters where it is detected that parental conflict
either pre or post separation is a factor in the report being made. There is
an understandable scepticism that the report if made by one of the
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disputing parents may be intended to create a strategic advantage in
Family Court proceedings rather than primarily about the welfare of the
children. Consequently, unless the allegation relates to immediate serious
risk, these reports can to be deemed not to warrant Child Protection
intervention on the basis of being more appropriately dealt with within the
‘private’ family law system.
 An unknown number of this type of reports are screened out of suitability
for State intervention based upon a presumption that if parental conflict
and allegations against spouses is a primary component of the report, then
the threshold for State intervention is not satisfied as the matter can be
more appropriately remedied in the ‘private’ family law jurisdiction.
Parents or other family members such as grandparents are advised to
initiate Family Court proceedings as the most suitable venue to seek
resolution of the issues relating to the care of the children. Whether this
category of cases reach the family law system and what results for the
children is not known, or at least not quantified and reported in the public
domain.
 Another category of cases is those where Child Protection intervention
does take place and an assessment of children’s safety and welfare issues
takes place. During the course of such intervention, parental conflict and
separation may become apparent to Child Protection authorities or occur
during the course of the intervention. If the issues concerning the
children’s safety and welfare are not serious enough to warrant the
initiation of Children’s Court proceedings, Child Protection will develop a
case closure plan to be implemented by a range of relevant support
services that seeks to address issues concerning the children welfare and
related parental problems. Either during or following Child Protection
intervention, parental dispute and separation may result in applications
being made in the Family Court. If current of past Child Protection
involvement becomes known to the Family Court, there can commonly be
requests for Child Protection to make its information available to the court
to assist the Court’s deliberations and decision making. State Child
Protection authorities are generally highly responsive to such requests and
produce reports and give evidence in relation to information that they
hold.
 Data relating to the extent of such assistance within each state and
nationally is not known. It is at times noted that this places an impost on
busy, overburdened State child welfare authorities but, given the expertise
of State Child Protection programs in relation to the protection of children
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and their unique investigative role, it is quite appropriate that such
assistance be provided to any court, especially the Family Court in the
modern era.
State welfare authorities through Child Protection programs lend
important assistance to the Family Court in response to the Court’s
Magellan Case Management process. The Magellan process relates only to
allegations of sexual abuse and/or serious physical abuse of children that
are made in parenting matters before the Family Court. Given that these
matters need to be resolved in the best interests of children as quickly as
possible and the Family Court has no investigatory arm of its own, the
Court successfully negotiated formal agreements with State authorities
that State Child Protection programs would undertake timely
investigations of all Magellan cases, whether or not these families were
already known to State authorities, and provide the Family Court with
advise through the provision of what is referred to as a ‘Magellan report’.
State welfare authorities provide the Family Court with vital advice to
assist determination of matters through the Magellan process. This
interface process between the two systems is understood to continue to
work well. Effectively through the agreements which support the Magellan
process, State authorities are agreeing to the Family Court through the
Magellan process displacing the usual internal priority setting process.
Again, this is highly appropriate as Child Protection programs should be
willing to contribute to matters in any court, including the Family Court,
which involves possible sexual abuse or serious physical abuse of children.
Whilst the Magellan process works successfully, its narrow parameters
relating only to sexual and serious physical abuse means that it only
precipitates Child Protection involvement in a very narrow band of cases
concerning the safety and welfare of children that are heard by the Family
Court. Magellan, being focused on such a narrow band of cases is now out
of step with modern thinking regarding the protection of children which
points to the significance of cumulative harm emanating from chronic
neglect involving emotional and physical components that do not reach the
threshold of ‘serious’ when applied on an episodic basis like sexual abuse
and serious physical abuse. In this sense, the Magellan process
demonstrates the benefit that is derived for Family Court decision making
by having input from State Child Protection authorities but also highlights
how this benefit does not flow widely enough.
It is not known whether the Family Court has attempted to negotiate a
broadening of the criteria governing the Magellan process. It is possible
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that state welfare authorities would not welcome this because of concern
about the impact on its workload but putting such practical considerations
aside, it is difficult in principle to argue that the assistance that the Family
Court derives from the Magellan process should not be available to a wider
cohort of cases. However, the placement of a child protection worker in the
Melbourne registry has without doubt assisted the Family Court in a wider
number of cases than those children in the Magellan list. It is nonetheless
piecemeal.
 State welfare authorities have powers to initiate Children’s Court
proceedings. It is not known how many applications brought before the
Children’s Courts were considered to be more appropriately heard and
determined by the Family Court. There is no State legislation that enables
Children’s Courts to refer matters to the Family Court or to readily enable
information before Children’s Courts to be made available to the Family
Court if proceedings are also occurring in that jurisdiction.
 However, the powers of Children’s Courts provide them with processes to
effectively cater for instances when it is viewed that the Family Court is the
more appropriate venue. Children’s Courts could exercise powers to
adjourn matters to enable these matters to be taken before a Family Court.
Such a possible scenario would see a Children’s Court aware through its
own proceedings of the presence and willingness of a suitable family
member in a position and willing to initiate Family Court proceedings. The
Children’s Court through its own part heard proceedings would also know
whether the Child Protection authority would be supportive of such Family
Court proceedings as holding the best resolution to cater for the children’s
best interests. Furthermore, this could potentially occur whilst interim
orders concerning the children were in place meaning that safety and
welfare considerations in the short term were adequately catered for.
 Effectively this means that there is already a process for Children’s Courts
to effectively have a Family Court ‘take carriage’ of a matter that was more
appropriately resolved in that court without formal legislative transfer
powers in place. Practically, there is no benefit in a Children’s Court
‘transferring’ a matter to a Family Court without knowing that there is a
family member willing and suitable to seek orders for the care of children
before that court. This knowledge may only come into existence during
Children’s Court proceedings together with the critical issue of the view of
the State welfare authority to a resolution being sought through the Family
Court.
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It is unclear whether a transfer provision by a Children’s Court would
achieve anything more than the adjournment scenario on the basis that
Family Court proceedings would be initiated. Potentially, if transfer powers
existed, a Children’s Court could transfer a matter to the Family Court and
family member could then fail to take the necessary action to apply for or
follow through on obtaining Family Court orders, leaving the matter unable
to be resolved in the Family Court. This would then necessitate the matter
being ‘transferred’ back to the Children’s Court. This is unsatisfactory.
From the vantage point of the Family Court, there appear two issues
concerning the interface with the responsibility exercised by the States for
the protection of children that hamper its effective operation.
One is the issue of the narrow parameters of the Magellan process
canvassed earlier in this report. The Magellan process dates back to 1998
and now needs to evolve to be more in tune with contemporary child
protection practice and the scope of challenging children’s case in the
Family Court. At the time of its development, Magellan was an innovative
‘collaborative, interagency model’ but its narrow focus is now increasingly
at odds with requirements of the Family Court’s need for access to
specialist child protection advice when responding to a broader range of
complex family matters. The rising number of unrepresented litigants
compounds these requirements.
The other major issue for the family law system arises where the Family
Court considers that neither parent is a viable carer. There can be instances
when Family Court judges hold extreme reservations about whether the
safety, welfare and best interests of children can be secured within their
family by either parent because of the limited parenting capacity of both
litigants. In such situations, there are real question about whether either
parent can provide ‘adequate’ or ‘good enough’ care for their children but
currently the resolution of such situations lies exclusively in State laws and
State courts.
This issue is understood to have become of increasing significance for the
Family Court and is associated not simply with entrenched conflict
between the parents but with both parents experiencing multiple and
complex problems which have a serious and sustained impact on their
parenting capacity.
Allegations about abuse and neglect of children are commonly raised in
post separation parenting disputes in the family law system. Whilst most
separated parents successfully negotiate their own parenting
arrangements, those who use the services of the broad family law system
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increasingly present with a range of social problems beyond the
relationship breakdown. Those cases that proceed to Family Court judicial
determination rather than being managed through parents own
agreements with or without the help of family dispute and relationship
services have become increasingly characterized by families with multiple
and complex social issues (Kaspiew et al, 2009).
This means that the core work of judicial determination in the Family Court
is about complex family matters involving child protection issues and
parents with a range of social problems that impact adversely on their
parenting capacity.
In this scenario, the Family Court needs to be able to draw on a different
array of mechanisms to support its effectiveness and efficiency such as the
possibility of transfer and cross vesting powers.
This general data trend about the nature of the cases requiring judicial
determination in the Family Court suggests that there may be considerable
scope for transfer of cases to State Children’s Courts for determination.
This would have implications for the workload of these courts that may be
problematic and requires greater specification. Furthermore, there is an
inference that Children’s Courts would view the matters in the same way as
the Family Court but it is unknown whether this would prove to be the
case. Whilst the two jurisdictions may both be involved in judicial
determination about a similar cohort of complex families, whether the
threshold for what constitutes adequate care by parents is shared by the
two jurisdictions is unclear.
Similarly, if the Family Court exercised cross vested powers of State
Children’s Courts, there would need to be confidence that these would be
exercised in a similar way with similar outcome. State Governments and
child welfare authorities may be reticent to support Family Courts
exercising cross vested Children’s Court powers because of concern that
this may lead to more children being placed on Orders which they must
administer thereby increasing workload. However, if a court determines
that a child needs safeguarding through the making of such Orders,
possible practical difficulties associated with an increased workload for
State welfare authorities should not preclude this occurring.
State welfare authorities may be concerned that their views about the need
for such Orders were not heard by the Family Court before the making of
such Orders as would be the case in State Children’s Courts. This is a
reasonable concern but can be readily overcome by provisions that require
State welfare authorities to be advised of matters in which the Family
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Court is exercising Children’s Court powers and be invited or required to
intervene make the necessary inquiries to form a view and advice the court
of these. This process would be analogous to that which currently occurs
in the Magellan process.
Trialling Problem Solving Justice in the Family Court
 Neither powers to transfer powers across jurisdictions nor cross vesting of
powers, whilst potentially beneficial and viable, holds the full answer to the
challenges facing the Family Court in relation to improving the outcomes
for children who are the subject of parenting disputes within families with
complex needs.
 Powers to transfer matters across jurisdictions and cross vesting powers
are legal solutions that may play a role. Finding improved and sustainable
solutions for children through the family law system should not just focus
on the law and legal solutions but also on how different parts of the overall
service system can work together for improvement. Indeed to look to only
legal solutions would almost certainly lead to failure.
 The key to effectiveness, particularly within a context of complexity, lies in
collaboration – both in terms of information sharing and purposeful
cooperative activity.
 Given the increasing complexity of the families that the Family Court is
responding to, improvements will depend upon strengthened collaboration
within the family law system itself (courts, court services and the
relationship services sector) as well as forging links with an array of other
services, both specialist adult focused services (family violence services,
drug and alcohol services, mental health services etc) and the broad child
and family welfare services sector.
 Problem solving justice is about both a modified approach to traditional
courtroom management as well as negotiating services to provide
specialist information and advice to the process of judicial determination.
 Trialling the development and implementation of problem solving justice
methods within the Family Court should be considered as a Demonstration
Project in a specific Registry using an action-research methodology to
document the process adopted and the issues that arise. The trial would
need to be imbued with a sense of urgency to make a positive impact
within a timely way and with the aim of producing a ‘step change’
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regarding how the system currently operates. The development of a
tailored approach to how problem solving justice could be put into effect in
the Family Court would require a range of preparatory and exploratory
steps.
Planning would need to quantify the level of access to services required.
Projections based on past data about the total number of matters dealt
with within the family law system that involve issues relating to the
protection of children would inform service planning requirements.
Negotiating a broader involvement of State welfare authorities in assisting
the Family Court beyond the current Magellan process (and the placement
of a child protection worker) is necessary and that this be based upon a
sound understanding of the total quantum of service required.
Beyond this, planning would need to address the types and levels of access
to specialist services required.
Specialist services such as family violence services, mental health services,
drug and alcohol services and Indigenous services are available to access in
the general community. The Family Court’s specific needs are to obtain
specialist assessments from such services to assist in informing judicial
decision making. This should be the focus of negotiations with these
service types rather than attempting to negotiate priority access for
ongoing support and treatment which would likely prove to be a futile task.
Family Court litigants are able to access these services for support and
treatment alongside other community members on the basis of availability
and priority needs. A common issue for families with complex needs in
access these specialist services is not necessarily service availability so
much as willingness to use services and comply with the demands of
sustained service intervention. Services do not necessarily prioritize the
provision of assessment services for external purposes such as for courts.
Purchasing of discrete assessment services from such specialist services
may need to be an option considered to achieve input from these services.
Whilst this involves costs, there are savings in terms of more efficient and
shorter trials as this method provides for guaranteed timely access to
specialist advice for the court.
The issue of whether consent orders made in matters involving child safety
and wellbeing without a high level of judicial oversight which ensures that
the interests of children are at the centre of considerations and consent
arrangements should be considered. This recognizes the sometimes
problematic outcomes that are possible for children when outcomes are
negotiated in the context of the interests of litigants ‘being traded’ off
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against each other. In instances where there are real child safety and
wellbeing issues, the Family Court must be satisfied that the interests of
vulnerable children are well protected.
The issue of whether final orders should be made in any matter involving
child safety and wellbeing issues without a ‘trial period’ of such orders to
test whether they are sufficient to ensure protection of the children
involved, viable and complied with should be examined.
Another area to explore in developing a tailored problem solving approach
applicable for the Family Court is to examine known adverse outcomes. A
contemporary approach to quality assurance processes within systems
suggests that adverse outcomes should not be disregarded as isolated
outlier events but as potentially sentinel events revealing fundamental
issues and routine practices that may be at play and culminating in
jeopardizing the quality of decision making.
The tragic suicide of a 17 year old young woman which led to the Abbey’s
Project campaign suggests important lessons to take into account in the
development of a problem solving approach. It certainly raises important
questions about how the voices of children are heard in cases that concern
them. In addition, the account of Abbey’s mother about how she
experienced the Family Court process also holds important lessons that
need to be reflected on and utilized in any reform process to strengthen the
court’s approach to the protection of children (The Australian, October 1112 2014)
The development of a problem solving method seeks to engage with voices
beyond those of the professional community that can only represent
service providers’ views regarding the interests of service users rather
than being a primary source.
Conclusion
 Developing and adopting a tailored problem solving method applicable for
the Family Court jurisdiction could be explored to test its capacity to
improve safeguarding of children, provide a means and focus for the court
to link with a range of services, and, thus provide a more robust platform
for potentially effectively implementing cross jurisdiction transfer of cases
and cross vesting of powers if these legal reforms ultimately proceed.
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 Even if these legal reforms do not proceed, problem solving justice
methods within the Family Court jurisdiction could deliver achievable
improvements in responding to the protection of children and families
with complex needs as well as decreasing the length and complexity of
trials.
David Fanning
June 2015
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