Family Law Council – Discussion Paper
Families with Complex Needs and the Intersection of the Family Law and
Child Protection Systems
The Attorney-General has issued the Family Law Council with the following terms of reference:
Many families seeking to resolve their parenting disputes have complex needs, including
emotional, sexual and physical abuse, family violence, substance abuse, neglect and mental
health issues. These disputes may be able to be better addressed with the assistance of
relationship support services and/or court processes that can cut across the child care &
protection and family law systems.
I request that the Family Law Council consider the following matters in relation to the needs of
these families:
1. The possibilities for transferring proceedings between the family law and state and
territory courts exercising care and protection jurisdiction within current jurisdictional
frameworks (including any legal or practical obstacles to greater inter-jurisdictional
co-operation).
2. The possible benefits of enabling the family courts to exercise the powers of the relevant
state and territory courts including children’s courts, and vice versa, and any changes
that would be required to implement this approach, including jurisdictional and
legislative changes.
3. The opportunities for enhancing collaboration and information sharing within the family
law system, such as between the family courts and family relationship services.
4. The opportunities for enhancing collaboration and information sharing between the
family law system and other relevant support services such as child protection, mental
health, family violence, drug and alcohol, Aboriginal and Torres Strait Islander and
migrant settlement services.
5. Any limitations in the data currently available to inform these terms of reference.
Council will provide a final report to the Attorney-General on this reference by June 2016. In June
2015 the Council provided an interim report to the Attorney-General covering terms of reference 1
and 2 following consultation with stakeholders across the family law and child protection sectors.
Council is issuing this discussion paper to guide submissions in relation to its consideration of
terms of reference 3 and 4 and its final report. The discussion paper reflects earlier submissions and
consultations within the family relationship service sector. If you or your organisation would like
to make a submission regarding these issues, please use the attached template and email it (in
Word) to flcreference@ag.gov.au by 30 September 2015.
A note on terminology
The term ‘family law system’ is used here to refer collectively to the family courts (the Family
Court of Australia, the Family Court of Western Australia and the Federal Circuit Court of
Australia) and all family law and post-separation services, including legal aid and private legal
services as well as family relationships services such as family dispute resolution, counselling,
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parenting orders programmes and contact services funded by the Attorney-General’s Department.
‘Services outside the family law system’ is understood here to mean services provided by statutory
agencies such as State and Territory child protection departments, mental health and drug and
alcohol services and other non-government community sector service providers. The ‘child
protection system’ refers collectively to the various state and territory children’s courts, child
protection departments and associated early intervention and support services made available to
children and families via child protection departments.
Preamble
There is growing evidence that the family law system is dealing with a large number of families
with complex needs, including safety and support needs associated with family violence, child
abuse, drug and alcohol dependency and mental health issues. However the family law system was
originally established to resolve ‘private’ disputes between parents, rather than to investigate issues
relating to children’s safety.
In particular, the family law system has no capacity to compel a forensic investigation of
allegations of child abuse or neglect by a child protection department, and the child protection
department may decide not to intervene in a family law matter. Decisions in family law matters,
particularly at an early stage, can therefore be made on the basis of very limited information, which
may put children or adults at risk.
In addition, families with complex needs often need to deal with more than one legal system in
relation to the care of their children, including the federal family law system and state or territory
courts dealing with family violence protection orders, family violence or child abuse related
criminal charges and/or child protection proceedings. This leads to a justice system that, for this
group of families, can be confusing, repetitive and slow to respond to risk.
Discussion:
Family relationship services: confidentiality, information sharing, collaboration
1. How can the exchange of information between the family courts and family relationship
services (such as family dispute resolution services, counselling services and parenting order
programs) be improved and facilitated in a way that maintains the integrity of therapeutic
service provision?
Various family relationship services exist in the family law system to support families experiencing
separation. These post-separation services include family dispute resolution (FDR) offered through
Family Relationship Centres, legal aid commissions and private providers, as well as children’s
contact services, counselling services for both adults and children and parenting orders programs.
Information that a person provides during FDR and whilst attending other Attorney-General's
Department funded services noted above (excluding observations of a visit at a children’s contact
service) is currently confidential and not admissible in any court proceedings (with some limited
exceptions relating to child abuse). This confidentiality allows for disclosure of past behaviour,
open consideration of options to settle disputes and allows for therapeutic service provision to be
undertaken without fear of information being used strategically in litigation. On the other hand,
some suggest that the present confidentiality rules and practices operate as a barrier to the sharing
of information, particularly about family violence, that could assist decision-makers to assess risk
to children.
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Council is interested in your views about this issue. In particular, Council is interested in your
views about whether there are certain kinds of information that service providers should be able to
make available to the family courts and what circumstances might warrant this. Council is also
interested in how practitioners might be able to share relevant information with the family courts to
allow for earlier and better risk assessment and decision-making. During Council’s consultations,
some stakeholders suggested the following possibilities:
a) Family dispute resolution practitioners providing further information in a section 60I
certificate, including information to guide case management.
b) The provision of objective observational or assessment reports. Observational reports are
currently provided on written request by some children’s contact services as are some
assessment reports for the Court.
c) Amending the confidentiality and admissibility sections of the Family Law Act.
Council is also interested in your views about other ways that the family courts and family
relationship services could collaborate more effectively to achieve safe outcomes for children,
particularly where there are risks to children that do not meet the threshold for child protection
system involvement.
Risk assessment in the family law system
2. What opportunities exist for ensuring the early assessment of risk to children in family
law matters?
Families may enter the family law system through a number of services or organisations. An
individual’s first point of contact may be with a Family Relationship Centre, a relationship services
program, a legal aid commission or community sector or private lawyer or a community sector
service such as a health provider. Each of these access points may use a different approach or set of
tools to determine whether children or adults are at risk of harm.
The Attorney-General’s Department commissioned the development of the DOORS (Detection of
Overall Risk Screen) tool, which screens for various risks and was designed for use by multiple
services within the family law system. DOORS has the potential to provide a shared language for
risk identification and response across the family law system. However, currently this tool is not
used universally. The DOORS tool is also not used by services outside the family law system.
Some States and Territories have their own standardised risk assessment tool, which is used by
different service systems (corrections, child protection and community service agencies) within the
jurisdiction (for example, the Common Risk Assessment Framework in Victoria). Some
stakeholders have suggested that these tools could also be used on a State-by-State basis as a
screening tool for family law matters. This approach could potentially enhance collaboration across
the different systems and courts and help to address the problems of confusion and repetition for
families noted above. On the other hand, there may be important reasons to use different screening
tools for different purposes or professional groups.
Council is interested in your views about the potential benefits of using a common risk assessment
tool across both the family law system and wider community and court sectors.
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Some stakeholders have also raised concerns about the inability of the family courts to compel
child protection departments to conduct a forensic investigation of child risk issues. In its 2002
report on the intersection of the family law and child protection systems, the Family Law Council
examined the possibility of establishing a dedicated investigatory service for family law matters to
address this gap. Council is interested in your views about this issue, including how to build the
family law system’s capacity to conduct or access forensic risk assessments.
Services outside the family law system: information sharing
3. How can services such as child protection departments, mental health, family violence,
and drug and alcohol services make relevant information available to the courts to support
decision-making in cases where families have complex needs?
Services such as child protection departments, mental health, family violence, and drug and alcohol
services often have important information related to child and adult safety that could be used by
family courts to inform their decision-making. In some jurisdictions, these service providers are
required to notify the child protection department when risk to a child is suspected. However,
professionals working for service providers are not required to provide information to the family
law system proactively where they identify risk issues. In many families, the risk to the child will
not meet the threshold for action by the child protection department, and so the information
provided to the department will never find its way to the family courts.
The issue of information sharing between the family law system and child protection systems has
been explored in detail in two reports prepared by Richard Chisholm: Information-sharing in
family law and child protection – Enhancing collaboration (2013), and The sharing of experts’
reports between the child protection system and the family law system (2014). Professor Chisholm
made a number of recommendations designed to improve information-sharing between child
protection systems and the family courts. Significant progress has been made in some jurisdictions
towards implementing these recommendations, including the development of local stakeholder
groups to progress the making of protocols between the family courts and State and Territory child
protection systems.
Various family relationship service providers have also suggested they would be better able to
deliver effective services to vulnerable children and families if the flow of information to them
from child protection departments were improved. This includes informing services of the
outcomes of referrals made by the service (whether they proceed or not) and undertaking
investigations where appropriate even if family law matters are underway. On the other hand, some
stakeholders have raised privacy concerns associated with information sharing between agencies.
The Family Law Council is interested in your views about these issues, including how to facilitate
information sharing between community sector services and the family law system in ways that do
not increase the risks for clients associated with increased information sharing.
Supporting children where safety concerns are identified
4. What services are needed to support families and children who use the family law system
where child safety concerns are identified?
Where a screening and risk assessment process has identified that children involved in the family
law system are at risk, responses may vary depending on the level and nature of risk and the
services available in the local area.
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A practitioner may make a notification to the local child protection department where the threshold
for notification has been met. A parent or child in this circumstance may be referred to support
services, for example family violence services. A parent may also be referred to services within the
family law system, such as supervised contact at a children’s contact service or attendance at a
parenting orders program. However, where the safety concerns do not meet the threshold for child
protection intervention (particularly where there is one protective parent), children may lack access
to services or supports to keep them safe.
Council is interested in your views on how the current system is operating in this respect and how
it could be improved to support children when safety concerns are identified (whether they meet
the child protection department’s threshold or not), for example, where there are concerns about a
parent’s mental health or drug or alcohol use or use of family violence.
Services outside the family law system: collaboration
5. How can interaction between the family courts and relevant services, including child
protection departments, family violence, mental health services, drug and alcohol services
and support services for Aboriginal and Torres Strait Islander families, be enhanced?
Organisations providing services and support to vulnerable families recognise the value in
enhanced collaboration with other organisations and with the family courts. Such collaboration
potentially spans the spectrum from greater interaction between organisations, to collaboration in
relation to individual clients, to integrated responses and greater co-ordination of services.
Various mechanisms may be used to promote enhanced interaction, integration and coordination.
These include:
- Regular stakeholder meetings, such as the Family Law Pathways Networks.
- Joint training initiatives.
- Co-location of service provider personnel at the various courts, such as child protection
workers and family violence support workers at the family courts, and service referral
kiosks with broad knowledge of local services.
- Funding for Aboriginal and Torres Strait Islander family court liaison officers within
Aboriginal and Torres Strait Islander specific agencies.
- Special court listing days for complex cases with multiple needs to maximise the
likelihood and efficiency of having service provider staff attend courts and co-ordinate
multi-agency responses.
Council is interested in your ideas about how to enhance interaction between the family courts and
relevant services, including child protection departments, family violence, mental health, drug and
alcohol, and support services for Aboriginal and Torres Strait Islander families.
Integrated responses for families with complex needs
6. What opportunities exist for developing integrated responses to families with complex
needs who use the family law system?
There appears to be a growing recognition at both the state and territory and federal levels in
Australia that complex social issues require holistic responses involving multi-agency cooperation
and collaboration. In particular, recent reviews of family violence have highlighted the need for
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integrated service responses. For example, the report of the Queensland Government’s Special
Taskforce on Domestic and Family Violence, released in March 2015, recommended measures
designed to promote ‘integrated responses to help victims of domestic and family violence navigate
the system’ and enhance interagency co-operation and collaboration. New South Wales has
recently introduced Integrated Domestic and Family Violence Service Programs that focus on
multi-agency responses to domestic and family violence.
Given the presence of family violence in many cases where families have complex needs, there
may be opportunities for the family law system to partner with various agencies at the state and
federal levels in creating formalised multi-agency structures to respond to family violence. Such
an approach could be widened to include structures recognising and responding to other issues that
families with complex needs present with, such as mental health and substance abuse concerns.
The Magellan list, a specialist list within the Family Court of Australia for managing cases
involving child sexual abuse allegations, can be seen as an example of effective multi-disciplinary
collaborative practice in the family law system. Council is also aware of the existence of
collaborative strategies for high-risk family violence clients in some state community health sector
networks. Council is interested in your views about possibilities for enhancing integrated service
delivery structures that could support families with complex needs who use the family law system.
Case co-ordination for families with complex needs
7. How might a more co-ordinated legal system for families with complex needs be created?
Council has identified widespread concern about the fragmented nature of the legal system and the
risk that families might ‘fall through the gaps’ between the state and federal systems, for example,
because relevant information about them is not known or available to the family courts, particularly
at an early stage.
Some have argued that specialist state-based multi-jurisdiction courts that can deal with a range of
relevant legal issues together, including issues of family law, child protection and civil and
criminal family violence matters, would improve responses to families with multiple and complex
needs, particularly where family violence is an issue. Others have suggested the need for a case coordination approach along the lines of the guardian ad litem model in the United Kingdom, or the
creation of case co-ordinators attached to the courts or located in external non-government
agencies.
Council is interested in your views about the potential benefits of multi-jurisdiction courts that can
address both family law and other legal issues faced by families with complex needs, particularly at
their first point of contact with the legal system. Council is also seeking views on whether a
specialist case co-ordinator role could offer an effective approach for families with complex needs,
including where such a position might be located and how this role might be developed.
The Family Law Council appreciates your consideration of these questions.
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