The power of children’s courts to make parenting orders

19.101 Some cases start in the child protection context, but are later referred to family courts. A child protection agency may investigate reported abuse or neglect and, during the course of that investigation, identify a viable and protective carer for the child. This may happen before or after proceedings are commenced in a children’s court. If proceedings in the children’s court have commenced, in some jurisdictions they will be withdrawn and the carer will be advised to go to a family court for a parenting order. In some cases, orders will be made in the children’s court that do not include the continued involvement of the child protection agency in the life of the child. In these cases, children’s court orders may be registered in the family courts.

19.102 This section of the chapter begins by identifying the overlapping concerns of the courts in relation to parenting issues and then considers the expansion of the power of the children’s court, in limited cases, to make parenting orders.

Overlapping concerns

19.103 The fact that there is federal family law jurisdiction and state child protection legislation and that both deal with issues of who a child shall live with, who the child shall spend time with, and protection of that child, also creates difficulties where the issue of child abuse is raised first in the state context. For example, rather than raising an allegation of child abuse in family court proceedings, a parent or another person may first notify a child protection agency that they have concerns about the child’s safety. That agency will investigate, and if it concludes that the child is in need of care and protection, it will commence proceedings in a children’s court. Although there are some exceptions, generally it is a child protection agency that must commence such proceedings.^[110]

19.104 The question of whether the case should be in the children’s court or a family court may arise at three different stages. First, during the agency’s investigation, but before it has commenced proceedings in a children’s court, the agency may identify a viable and protective carer for the child and refer the carer to a family court. Secondly, the child protection agency may already have commenced proceedings in a children’s court and it may identify a viable and protective carer. It may then withdraw its application in the children’s court and advise that carer to make an application for a parenting order in a family court.

19.105 Thirdly, after a hearing in a children’s court, it may become apparent that, although the child protection matters are resolved, there is still a dispute, for example between parents who cannot agree who the child shall live with and who it shall spend time with. Orders of a children’s court may not include the continued involvement of a child protection agency, but may instead regulate the parents’ involvement with a child. For example, courts in some states can make orders under the child protection legislation in relation to who may have contact with a child, and the conditions of that contact. In other states, courts are only able to make orders prohibiting contact by certain parties—they are unable to establish a contact regime.^[111] When the children’s court makes orders regulating parental contact these orders can be registered in the family courts.^[112]

Children’s court or family court?

19.106 In a family violence context, an illustration of the issues is provided by the example of children regarded as being at serious risk from family violence. A report is made to a child protection agency and that agency concludes that the mother may be a viable carer if the violent father is excluded from the home and from contact with the mother and children. The mother may be advised by the child protection agency to go to a family court for a parenting order. A parenting order in a family court may be desirable for the agency because, if the children are with a viable and protective carer, the conditions for a care order (that the child is in need of care and protection) no longer apply. Further, if these children are now considered safe, the agency’s resources need to be used to protect other children who are at risk.

19.107 The mother may also prefer an order from the family court rather than the continuing involvement of the child protection agency in her life and that of her children. However, there may be problems involved in referring these cases to the family courts, especially if the applicant does not receive support from the child protection agency in making the application.

19.108 First, the viable carer may not take action in the family courts, so that there may be no enforceable order securing the safety of the children, either under the Family Law Act or under state and territory family violence legislation. In the example above, if the mother does not secure the arrangements in relation to the children with an order and the father takes them or fails to return them after spending time with them, she will have no order on which to rely and the children may be at risk.

19.109 Secondly, in the family court, the applicant may have difficulty in securing the order that was envisaged by the agency as being safe and protective for the children. The applicant may have difficulty marshalling evidence of violence and abuse. Providing evidence of violence to a standard sufficient to satisfy family courts may be difficult and is rarely attempted, except in the most severe of cases.^[113] Further, where cases involving child protection concerns are transferred to the family courts, it may be that the applicant wishes to, or has been advised to, seek an order excluding or strictly limiting contact with a violent parent. As noted in the Chisholm Review, certain provisions of the Family Law Act may impede the extent to which the court is informed about any history or risk of family violence. In particular, concerns have been raised about s 60CC(3)(c)—the ‘friendly parent’ provision—and s 117AB, that provides for costs orders if the court is satisfied that a party to proceedings knowingly made a false allegation or statement in the proceedings.^[114] Thus the outcome may not be the one envisaged by the child protection agency that sent the applicant to the family courts and it may be one that puts the children at risk.

19.110 Evidence of these problems is provided from several sources. In 2002, the Family Law Council argued that there will be some cases where it is appropriate to leave it to a viable carer to seek orders in a family court, for example where all that is needed is to formalise an agreed arrangement. However, in other cases it will be ‘an abrogation of the public responsibility to ensure that children are protected’, because

a parent may find it very difficult to take responsibility for presenting a case to court. There may be language problems, problems understanding the legal system, or problems receiving or maintaining legal aid. Victims of domestic violence or other abuse may find it very difficult to take responsibility for a legal battle with the perpetrator when they remain fearful of the former partner’s propensity for violence. For these reasons, if the child can be adequately protected through orders made under the Family Law Act, then in some cases it may be very important for child protection authorities to take the lead in presenting the case for orders which will protect a child.^[115]

19.111 Empirical research and scholarly commentary also provides evidence of the problem. An evaluation of the Magellan program in 2001 noted that cases were being shifted from children’s courts to family courts at the instigation of child protection agencies.^[116] It was noted there that cases that had been in the children’s court were disproportionately represented in the cases that went the full length of proceedings in the Family Court in the Magellan program and were the most expensive in terms of the costs of representation of the children.^[117]

19.112 In Kelly and Fehlberg’s 2002 study of child protection cases in the Victorian Children’s Court, it was revealed that the Department of Human Services sought to withdraw its Children’s Court application in 80 out of 113 cases because a viable carer had been identified and that carer had obtained, applied for, or was willing to apply for family court orders.^[118] In some cases, family court orders were not obtained. However, 62 of these cases were tracked in the family court. Family court orders in favour of the identified viable carer were obtained in 56 of the tracked cases but, in 6 cases, the orders were not in favour of the identified viable carer. In one case, the agency identified the father as the viable carer and referred the family to the family court, but had no further involvement. The children were placed in the care of their mother, from whom the child protection agency had twice removed them and whose situation had not changed significantly.^[119]

19.113 In this study, the Department of Human Services very rarely played any role in the family court proceedings to which they referred carers, appearing in only six of the 62 tracked cases. The researchers identified some cases involving serious violence and high levels of concern about children’s safety where children were left without orders.

19.114 In Kelly and Fehlberg’s study, the Victorian Department of Human Services recommended that carers apply for family court orders because such orders would provide stability for the children. While orders of children’s courts, including orders about whom a child is to live with, may be of limited duration, parenting orders under the Family Law Act may remain in force until the child is 18.^[120] Unfortunately, stability was not necessarily an outcome for the children in the family courts. Kelly and Fehlberg identified a number of cases where there were repeated applications and orders.^[121] In their sample, the actions of child protection agencies in referring viable carers to the family courts did not always achieve the aims of an enforceable order, an order in favour of a parent identified by the agency as a viable parent and a stable situation for the child.

19.115 Professor Thea Brown and Dr Renata Alexander have also commented that referring viable carers in child protection cases to a family court is not always effective and that there are conflicts and gaps in the systems.^[122]

19.116 Evidence of this problem also came from consultations and submissions. One participant in the ALRC’s Family Violence Online Forum provided an illustration of this dilemma:

For instance, the [child protection department] get contacted in relation to the safety of a child due to family violence allegations etc. They advise the mother to take out an intervention order excluding the father from the home or they will have no choice but to remove the child from her care. The mother then takes out an intervention order excluding the father. The department then make an assessment that their involvement is not warranted in the case as they deem the mother to be acting protectively.

The problem … arises when an application is made in the family court jurisdiction by the father to spend time with the children.

At the Family or Federal Magistrates Court, the mother explains why she is seeking that the father have no contact or supervised contact with the children. She says she was advised by [the child protection department] to restrict contact. [The child protection department] however have not provided any written evidence of this advice, except to advise the court that they have no reason to be involved where the mother is acting protectively.

The mother is then left in court by herself, without [the child protection department] providing support to the mother’s position. The mother then has to explain why she is acting as an ‘unfriendly parent’ (as per the Family Law Act) by not facilitating contact.^[123]

Proposals for closing the gap

19.117 A number of proposals have already been made in relation to the problems identified above. These proposals are reviewed before the responses from stakeholders are considered. The first proposal is for child protection agencies to stay engaged with more parents when they advise them to apply to the family court. The second is that the jurisdiction of the children’s courts be extended to allow them to make orders under the Family Law Act, so that where cases are commenced in the children’s courts and it becomes evident that a parenting order under the Family Law Act is more appropriate, that court can make such an order.

Change of practice of child protection agencies

19.118 Greater support for parents with family violence and child protection concerns who litigate in family courts may be achieved by a change of practice by child protection agencies, in favour of staying engaged with more families at an appropriate level. In some cases, no further intervention will be required because the desired orders are achieved by consent. In other cases the intervention required will be limited to providing a letter detailing the nature of the advice given to the applicant by the child protection department. In others it may involve voluntary provision of documentation (rather than reliance on subpoena or s 69ZW of the Family Law Act), the provision of practical support during FDR and/or litigation, or involvement in the case through intervention under s 92A of the Family Law Act. Kelly and Fehlberg describe this type of intervention in their study of cases in the ACT—albeit in relation to a small sample.^[124]

19.119 The consequences of providing this support would place a greater responsibility on child protection agencies. However the consequences of not providing it would appear to be that some children are placed at risk. If the recommendation above, of specialist units within child protection services dealing with family law work, is accepted, these units could be a resource for litigants referred to the family courts by the agency, as well as for the court in requesting investigation of child abuse. This may ameliorate the burden on state child protection departments.

19.120 Further, it may be that the required support for some clients does not need to be provided by a child protection agency, but could be provided, for example, by a domestic violence court support worker, parenting support, counselling support or other services.

Expanding jurisdiction of children’s courts

19.121 The second proposal to close this gap in the system involves giving children’s courts powers to make orders under the Family Law Act so that those courts could make a parenting order in an appropriate case rather than referring the parent to a family court. In ALRC Report 84, the ALRC and HREOC considered that, in principle, there is no procedural reason for this limitation on the jurisdiction of state and territory children’s courts and recommended the vesting of federal jurisdiction under s 69J of the Family Law Act in children’s courts.^[125] In its report on Family Law and Child Protection, the Family Law Council recommended that ‘the Family Law Act should be amended to allow Children’s and Youth Courts to make consent orders regarding residence and contact in certain circumstances’.^[126]

19.122 While children’s courts in some states can make orders under the relevant child protection legislation in relation to who may have contact with a child, and the conditions of that contact, in other states, courts are only able to make orders prohibiting contact by certain parties—they are unable to establish a contact regime.^[127]

19.123 Each state and territory court of summary jurisdiction is vested with jurisdiction under pt VII of the Family Law Act.^[128] Magistrates are able to exercise federal family law jurisdiction under s 69J of the Family Law Act, but children’s court magistrates are not able to do so—because s 69J confers powers on ‘each court of summary jurisdiction’, and it appears to be generally accepted that children’s courts are not courts of summary jurisdiction.^[129] However, where magistrates sit in both children’s courts and the general jurisdiction of the magistrates court, it would appear that while the judicial officer has no jurisdiction to make orders under the Family Law Act when sitting in the children’s court, the same judicial officer does have the power to do so when sitting in the magistrates court.

19.124 In the Consultation Paper, the Commissions asked whether children’s courts should be given more powers to ensure orders are made in the best interests of children that deal with parental contact issues and, if so, what those powers should be.^[130] The Commissions also asked whether the Family Law Act should be amended to extend the jurisdiction that state and territory courts already have under pt VII to make orders for a parent to spend time with a child.^[131]

Submissions and consultations

Involvement of child protection agencies

19.125 There was overwhelming support from stakeholders for child protection agencies to be more involved in family court proceedings.^[132] For example, the Law Society of NSW stated that ‘child protection agencies should intervene in Family Courts more often as they have a useful and relevant role to play’.^[133] The Office of the Child Safety Commissioner in Victoria also submitted that child protection agencies should be required to play a much more active role in family law proceedings and ‘it is critical that kinship carers are not abandoned by child protection when cases go across the state or territory and federal systems’.^[134]

19.126 Stakeholders also raised concerns that child protection agencies were passing on matters to family courts, sometimes with adverse consequences. For example, the National Peak Body for Safety and Protection of Parents and Children argued that child protection agencies avoided involvement in family court cases ‘handballing this to family courts … so the children and vulnerable mums are falling through the cracks in the system’.^[135]

Expanding power of children’s courts

19.127 With respect to the question whether children’s courts should be given power to make parenting decisions under the Family Law Act, many submissions responding to this question did so in a general way by supporting the idea that one court should deal with all child protection cases. For example, the Aboriginal Family Violence Prevention and Legal Service submitted that:

the current two court system for dealing with children’s matters is clumsy, confusing for families and can lead to inconsistent outcomes when two jurisdictions take different approaches.^[136]

19.128 The Magistrates’ Court and Children’s Court of Victoria observed that:

When dealing with a family and determining issues affecting that family, the capacity to exercise all jurisdictions is sensible and avoids inconsistent responses from different courts on the same facts. The child’s best interests should be the focus not the appropriateness of a particular jurisdiction.^[137]

19.129 Submissions also mentioned the problems of the lack of coordination between the two systems and the need for improved integration to provide a holistic approach, consistent with the ‘one court’ principle. One submission also argued specifically for ‘a more seamless approach’.^[138]

19.130 However, a number of concerns were raised in relation to increasing the jurisdiction of children’s courts to deal with Family Law Act matters. The first was the complexity of the task that would be faced by magistrates called upon to make orders under both child protection and family law. Cases involving child protection issues, including family violence, are complex cases. The Chief Justice of the Family Court and the Chief Federal Magistrate submitted that courts exercising jurisdiction under both state or territory child protection legislation and under the Family Law Act would be dealing with legislation which contains ‘many significant and fundamental differences’.^[139] Children’s court judicial officers may be full time specialists but, more frequently, they also sit in the very broad general jurisdiction of magistrates courts. Adding Family Law Act proceedings to the list of matters to which they must attend would add significantly to their tasks.^[140]

19.131 The concern noted above, that magistrates courts presently have jurisdiction under the Family Law Act but rarely exercise it, was also mentioned in submissions, although specialist family violence courts were named as an exception.^[141] It was suggested that the reluctance of magistrates to use their powers may be based on a feeling that they do not have the requisite expertise.^[142] Concerns of this nature led the Chief Justice of the Family Court and the Chief Federal Magistrate to suggest that:

In child protection proceedings where contact between parents arises as an incidental matter it is difficult to see an objection in principle to this being determined in a state child protection court. Once a child protection issue has been determined however, the state court’s jurisdiction in what is otherwise a federal family law issue should cease.^[143]

19.132 The importance of specialised courts, both for children’s cases^[144] and for family law matters,^[145] and the need for training for judicial officers who do this work was argued by a number of submissions.^[146] The Magistrates’ Court and the Children’s Court of Victoria agreed that there will be a need for training, but emphasised that Victoria has learned from the benefits of specialised courts dealing with family violence cases.^[147]

19.133 A further concern was that children’s courts are presently operating over capacity. Adding another jurisdiction to their workload would require additional resources.^[148]

19.134 Along with strong support for one court to deal with children’s matters and the need for a more seamless system, there was also much support for further consideration and investigation of this proposal before action is taken.^[149] The Queensland Government, for example, argued that this option would require some fundamental changes to accommodate significant differences between the two systems.^[150] One example of a practical issue is that children’s courts are closed courts, whereas family courts are not.^[151] National Legal Aid suggested that the pilot scheme proposed in Western Australia to integrate family law and child protection cases in the state family court could be used as a pilot for the extension of the jurisdiction of the children’s courts in other states.^[152]

Commissions’ views

Involvement of child protection agencies

19.135 The Commissions acknowledge the powerful case for child protection services having more involvement in family court proceedings where they investigate allegations of child abuse and refer carers to family courts for orders. There will be cases where a simple referral is all that is required and the applicant has the capacity to secure the orders needed. However, this is clearly not sufficient to provide effective protection for all families and some children appear to be endangered by this gap in the system. Therefore, where a child protection agency investigates child abuse, locates a viable and protective carer, and refers that carer to a family court for parenting orders, the agency should, in appropriate cases, provide written information to a family court about its advice and the reasons for it, provide reports and other evidence as appropriate and/or intervene in the proceedings.

19.136 If the recommendation of the Commissions for a specialist service within child protection agencies for family court cases is accepted, it may be appropriate that this service could also provide support for such litigants. Alternatively it may be that what is required in some cases is not support from a child protection agency but from a court support service that would facilitate the referral and access to other supports.

Expanding power of children’s courts

19.137 ALRC Report 84 criticised legal processes which required a child’s persistent and multiple engagement with the legal system as being contrary to the child’s best interests.^[153] It is also at odds with the goal of seamlessness that the Commissions have identified as a principal aim of this Inquiry.^[154] The Commissions’ view is that, wherever possible, matters involving children should be dealt with in one court—or as seamlessly as the legal and support frameworks can achieve in any given case.

19.138 This was also the outcome recommended by the Family Law Council in 2002 as part of its ‘one court principle’—that is, that state and territory courts should have a broad power to make residence and contact orders under the Family Law Act in child protection proceedings so that one court can deal with all substantive matters and ensure the child’s best interests and welfare are addressed.^[155]

19.139 The best interests of children and those who care for them is clearly served by being able to have all issues dealt with by one court. It is those children and their families who pay the price for the failure to imagine a better and undivided system, and to implement it. The Commissions therefore recommend that, when a matter is before a children’s court, such court should have the same powers to make decisions under the Family Law Act as do magistrates courts. This should include the expanded powers recommended in Chapter 16.

19.140 Expanding the jurisdiction of children’s courts in this way would have the advantage that, where a case commences in a children’s court but raises parenting issues, a court apprised of the child protection concerns and having evidence from a child protection authority would be able to decide if it were more appropriate for a decision to be made under child protection legislation, or under the Family Law Act. It would have jurisdiction to make both types of orders.

19.141 The Commissions acknowledge, however, that there are arguments against giving children’s courts powers under the Family Law Act. For example, while magistrates courts presently have the power to make orders under pt VII of the Family Law Act, they appear to be disinclined to use those powers. As noted in Chapter 16, this may be because:

• magistrates may not be familiar with their powers under the Family Law Act;

• legal representatives may also not be familiar with those powers and may not request that they be used or argue effectively for their use;

• decisions under pt VII of the Family Law Act are complex decisions and there may be concerns about falling into appealable error; and

• magistrates courts have limited time available in busy court lists—making these decisions would be an added burden.

19.142 Similar considerations may well be relevant to children’s courts making decisions under the Family Law Act and it is therefore important that, accompanying any expansion of jurisdiction, the necessary resources are committed for children’s courts to be confident in exercising these powers.

19.143 Further, FDR is often used to resolve family disputes and its availability may be limited in children’s courts. However, there is a developing use of FDR in child protection cases (see Chapter 23). Further, FDR services are community based, rather than court based, and can be accessed by litigants with parenting issues who commence in children’s courts. Hence the Commissions consider that this is not a powerful argument against expanding children’s court jurisdiction.

19.144 However, the Commissions are also cognisant of the complexity of making the proposed changes, involving, as they do, a shift in decision making about parenting in some cases of child abuse to children’s courts. Issues of resources, training and concerning the fundamental differences in the perspectives of children’s and family courts and in the legislation under which they act, were some of the reservations expressed by stakeholders.

19.145 The Commissions therefore suggest that the work proposed in Western Australia, involving integration of family law and child protection issues, be used as an instructive pilot, to identify the benefits and challenges of this change in more detail and to inform future developments in other states and territories.