General comment: Family violence is acknowledged in the Family Law Act as profoundly affecting children and families. Consideration of the risk of violence is one of the primary considerations in section 60CC(2) when determining the best interests of children. However, the language of the Act and its concerns is not reflected in the resources provided to the Courts to realistically deal with violence and its effects.
From the basic issue of feeling and being safe at court, to the resources available to investigate allegations and risk, and access to services to support victims of violence, the system is under‐funded. The issue of family violence cannot be addressed in a way which assists Australian families and children without proper and consistent funding.
Family courts already struggle to deal with their current workload and extending their jurisdiction would only create further problems.
Many of the issues canvassed in this Chapter propose a wholesale change to the interaction of family law and child protection legislation. This requires much more detailed consideration and a lengthier period for consultation, and should perhaps be the focus of a single reference. It is noted that the Standing Committee of Attorneys‐General is currently exploring options to improve cooperation between the family courts and state and territory child welfare authorities.
Question/Proposal FLS Response
Question 14‐1
Can children’s courts be given more powers to ensure orders are made in the best interests of children that deal with parental contact issues? If so, what powers should the children’s courts have, and what resources would be required?
See general comment above.
Question 14‐2
Should the Family Law Act 1975 (Cth) be amended to extend the jurisdiction which state and territory courts already have under pt VII to make orders for a parent to spend time with a child?
See general comment above.
Question 14‐3
When should state and territory children’s courts have power to determine contact between one parent and another in matters that are before the court in child protection proceedings?
See general comment above.
Question 14‐4
What features of the Family Court of Western Australia should be replicated in other jurisdictions?
FLS has been unable to provide comment on this question in the time allowed. FLS will forward comment as soon as possible.
Question 14‐5
Is there any role for a referral of legislative power to the Commonwealth in relation to child protection matters? If so, what should such a referral cover?
See general comment above
Proposal 14‐1
To ensure appropriate disclosure of safety concerns for children, the Initiating Application (Family Law) form should be amended by adding an additional part headed ‘Concerns about safety’
which should include a question along the lines of ‘Do you have any significant fears for the safety of you or your child(ren) that the court should know about?’.
See general comment above.
Question 14‐6
What other practical changes to the applications forms for initiating proceedings in federal family courts and the Family Court of Western Australia would make it clear to parties that they are required to disclose current or prior child protection proceedings and current child protection orders?
FLS has been unable to provide comment on this question in the time allowed. FLS will forward comment as soon as possible.
Question 14‐7
In what other ways can family law processes be improved to ensure that any child safety concerns that may need to be drawn to the attention of child protection agencies are highlighted appropriately upon commencement of proceedings under the Family Law Act 1975 (Cth)?
See general comment above.
Proposal 14‐2
Screening and risk assessment frameworks developed for federal family courts should closely involve state and territory child protection agencies.
See general comment above.
Question 14‐8
In what ways can cooperation between child protection agencies and family courts be improved with respect to compliance with subpoenas and s 69ZW of the Family Law Act 1975 (Cth)?
Improved communication and exchange of information. See also, general comment above.
Question 14‐9
What role should child protection agencies play in family law proceedings?
See general comment above.
Question 14‐10
Are amendments to the Family Law Act 1975 (Cth) and state and territory child protection legislation required to encourage prompt and effective intervention by child protection agencies in family law proceedings? For example, should the Family Law Act be amended to provide that the court may, upon finding that none of the parties to the proceedings is a viable carer, on its own motion join a child protection agency or some other person (for example, a grandparent) as a party to proceedings? Should federal family courts have additional powers to ensure that intervention by the child protection system occurs when necessary in the interests of the safety of children?
See general comment above.
Question 14‐11
What are the advantages of registration of state and territory child protection orders under ss 70C and 70D of the Family Law Act 1975 (Cth)? What are the interactions in practice of the registration provisions and s 67ZK of the Family Law Act?
See general comment above.
Question 14‐12
How, in practice, can information exchange best be facilitated between family courts and child protection agencies to ensure the safety of children? Are changes to the Family Law Act 1975 (Cth) necessary to achieve this?
See general comment above.
Proposal 14‐3
All states and territories should develop a Memorandum of Understanding or Protocol to govern the relationship between federal family courts and child protection agencies
FLS agrees with this proposal.
Question 14‐13
Does the variation in the content of the protocols cause any difficulties and, if so, what changes should be made to facilitate the flow of information between the family courts and child protection agencies? What measures should be taken to ensure that the protocols are effective in practice?
See general comment above.
Question 14‐14
How could the Memorandums of Understanding and Protocols for exchange of information between federal family courts, child protection agencies and legal aid commissions be better known within courts, and beyond them?
See general comment above.
Proposal 14‐4
The Australian Government should encourage all jurisdictions to develop consistent protocols between federal family courts and state and territory child protection agencies which include procedures:
(a) for electing the jurisdiction in which to commence proceedings;
(b) for dealing with requests for documents and information under s 69ZW of the Family Law Act 1975 (Cth);
(c) for responding to subpoenas issued by federal family courts; and
(d) which permit a federal family court to invite a child protection agency to consent to an order being made which allocates parental responsibility in the child protection agency’s favour, in circumstances where it determines that no order should be made in favour of either parent.
See general comment above.
Question 14‐15
In what ways can the principles of the Magellan project be applied in the Federal Magistrates Court?
It may be more appropriate to revisit this question following the passage of the Access to Justice Family Court Restructure and Other Measures) Bill 2010.
Question 14‐16
What changes to law and practice are required to prevent children falling through the gaps between the child protection and family law systems?
See general comment above.
Question 14‐17
Can the problems of the interactions in practice between family law and child protection systems be resolved by collaborative arrangements such as the Magellan project? Are legal changes necessary to prevent systemic problems and harm to children, and, if so, what are they?
See general comment above.
Chapter 16 – Sexual Offences