An extended cross-vesting scheme: an option for reform

Introduction

15.26 The above problems all centre on co-ordination between the jurisdictions and the relative responsibilities of the States and Territories and the Commonwealth. The question this poses for the Inquiry is how to re-orient responsibilities and enhance co-ordination so that care and protection and family law disputes are resolved more rationally, expeditiously, fairly and with least disruption to the lives of the children involved. There are a number of options to assist the rationalisation of the responsibilities of the various courts.

15.27 DRP 3 proposed an extended cross-vesting scheme to deal with these problems.^[62] This proposal is further discussed below. Also discussed is an alternative scheme that would see the transfer of power over care and protection matters to the Commonwealth by the States and Territories. A third option would be to refine the current arrangements further. These options are outlined from para 15.42.

15.28 While the extension of the cross-vesting scheme remains the preferred option, a pending High Court matter challenging the validity of cross-vesting schemes requires that other options be explored.^[63] The High Court challenge is based on the argument that the Constitution prohibits the vesting of judicial power by State legislation on federal courts. In the judgment appealed from, the Federal Court held that

[n]either Ch III of the Commonwealth Constitution nor s 51(xxxvii), permitting the Commonwealth to legislate with respect to matters referred to it by the parliaments of the States, prohibits or limits the conferral of State judicial power on federal courts although Ch III is exhaustive in relation to the definition of federal jurisdiction that may be vested by the Commonwealth Parliament in a federal court.^[64]

In the event of the failure of the cross-vesting scheme, one of the alternatives proposed below should be introduced to ensure that the one court has the jurisdiction to deal with the range of related issues presented in care and protection and family law matters.

An extended cross-vesting scheme

15.29 Cross-vesting legislation has been used in many cases to

…end the barren jurisdictional disputes which have increasingly bedeviled litigation in Australia…and to ensure that no proceedings failed for want of jurisdiction.^[65]

15.30 The cross-vesting arrangements have been hailed as a significant development that has assisted in overcoming the constitutional difficulties of the family law jurisdiction.^[66] Certainly, they have assisted in resolving some matters in which family law and care and protection issues are inextricably bound.^[67] However, in children’s cases the current cross-vesting arrangements have not resolved all the jurisdictional difficulties. The cross-vesting scheme involves only superior courts of record in the States and Territories, whereas children’s care and protection matters are dealt with at first instance in the lower courts. The Family Court can determine care and protection matters under the relevant State legislation only if an application is made to a State or Territory Supreme Court^[68] and is then transferred to the Family Court.^[69] The Supreme Courts may also transfer proceedings of their own motion.^[70]

15.31 Under a reformed scheme, the Family Court would be empowered to deal with care and protection issues under State or Territory legislation whenever they are relevant to matters already before it. State and Territory children’s courts would be empowered reciprocally to deal with relevant family law matters when considering care and protection applications. In this way, all relevant issues could be dealt with in the one forum and in the one set of proceedings. This proposal would leave legislative power for care and protection with the States and Territories but would require the enactment of additional cross-vesting legislation to provide for the transfer and receipt of relevant jurisdiction between the Family Court and the children’s courts of the States and Territories. It would also require the development of appropriate protocols and guidelines between the participating courts and departments.

15.32 The Family Law Council considered this issue in its report Child Sexual Abuse.^[71] It recommended a scheme similar to that proposed here.^[72] The Australian Institute of Judicial Administration (AIJA) also recommended that the cross-vesting scheme be extended at least to the level of the main civil trial courts.^[73] AIJA’s discussion dealt mainly with areas of law other than family law but the principle was to apply generally. The proposal in DRP 3 received substantial support.^[74] Copelen Child and Family Services submitted

…delays in determining the best interests of the child could be avoided when one court is involved rather than shifting a case between different court jurisdictions. The latter simply increases legal costs to the parents and the State.^[75]

A few submissions objected to the proposal. The Children’s Interest Bureau Board submitted that ‘[t]o combine the two systems or worse to expect both systems to be able to undertake both roles simultaneously requires far greater debate and discussion’.^[76]

15.33 The Family Law Council envisaged that the State and Territory children’s courts should take precedence in hearing matters that involve allegations of child sexual abuse or care and protection issues.^[77] Given the need to deal with these cases expeditiously and to minimise disruption, we envisage the cross-vesting scheme operating so that the first court to acquire a matter would hear all the relevant issues under both jurisdictions. A court that has made orders in relation to a child should generally maintain carriage of that matter including later applications for rescission or variation of the original orders.^[78] If rescission or variation orders could be initiated in the Family Court, that Court could receive inappropriate applications for parenting orders in relation to children under care and protection orders in an attempt to obtain a rescission along with the Family Court parenting order. The Family Court may become an inappropriate alternative forum or de-facto appeal court. As the NSW Government submitted,

[c]are and protection orders are but a part of a holistic and detailed Department of Community Services plan for the care and protection of a child. It would be unproductive and against the interests of the child to subject such a plan to a formal review (by the Family Court) where a failure or shortcoming of the plan itself was not the reason for the review.^[79]

Mechanics of the scheme

15.34 The proposed scheme would minimise the risk that the parties would seek to institute proceedings in the court with the most advantageous procedures and rules of confidentiality,^[80] burdens of proof and the like. The possibility of forum shopping needs some examination and court rules would need to be amended to prevent it.^[81] The rules of evidence to apply also need to be determined. The current cross-vesting legislation provides that the procedures of the court in which the matter is heard apply.^[82] The Evidence Act takes precedence over State or Territory rules of evidence where proceedings concern State or Territory as well as federal legislation.^[83] States and Territory children’s courts are generally unconstrained by rules of evidence.^[84] The less rigorous evidentiary requirements in care and protection jurisdictions may assist in the proper resolution of cases where both care and protection and family law issues are involved.^[85] One submission suggested this examination should be conducted in consultation with relevant government and non-government agencies. The Inquiry agrees with this suggestion.^[86]

15.35 The successful operation of the extended scheme for proceedings commenced in the Family Court would be dependent on the co-operation of State and Territory family services departments. The exercise of State and Territory care and protection jurisdiction would remain dependent on the initiation of care and protection proceedings by the relevant family services department. Parties other than the department should not be able to initiate proceedings in the Family Court under the care and protection legislation.

15.36 Officers of the Family Court and court counsellors are required to report evidence or suspicions of child abuse to the relevant family services department.^[87] If a party makes an allegation of child abuse during the course of proceedings, the Registrar of the Court is required also to notify the family services department.^[88] The provisions that require the notification are relatively broad and are defined to include sexual assault or sexual activity involving the child.^[89] An officer of the court may, but is not required to, report to the department other forms of psychological harm to or ill-treatment of a child.^[90] This conduct is not closely defined. States and Territories define abuse and neglect differently.^[91] The conduct referred to in the Family Law Act may differ from the conduct which is accepted as a notification by the relevant family services department. The Inquiry considers that notifications under the proposed extended cross-vesting arrangements should more closely match the definitions of notifiable conduct under the State and Territory legislation to ensure that all relevant care and protection concerns may be dealt with in the one proceedings.^[92] The NSW Government supported more closely aligning matters to be notified to the legislative definitions of child abuse.^[93]

15.37 If care and protection issues were raised during the course of proceedings in the Family Court but the department decided against intervening, the Family Court should not be able to make an order requiring the involvement of the department. It would be inappropriate for a court to require a department to take responsibility for a child over the objections of that department.^[94] However, the Family Court, where it had continuing concerns about the safety or welfare of the child, should be able to require the department to provide a report on the results of its investigations of the notification and the reasons for the decision not to pursue the case. The NSW Government objected to this proposal on the grounds that requiring appearances would have resource implications and divert caseworkers.^[95] The Inquiry envisages this provision would be used sparingly where matters were unable to proceed without advice from the department.

15.38 At present, courts of summary jurisdiction are able to determine matters relating to children under the Family Law Act only with the consent of the parties.^[96] Under the proposed extended cross-vesting scheme there would be no requirement for consent. The Family Law Council has also proposed this.^[97] North Queensland Women’s Legal Service noted that giving State and Territory magistrates power to make final orders ‘…can only be a backward step…unless those magistrates have the necessary training and expertise’.^[98] National Legal Aid expressed concern at this proposal.

Natural justice principles must always be accorded by Courts. Magistrates/Local Courts do not always have the capacity to handle Family Court matters, certainly not with the level of expertise consistent with judicial officers in the Family Court of Australia.^[99]

15.39 The Inquiry agrees with these concerns but not with the conclusions reached. The requirement for consent, if retained, would render the extended cross-vesting scheme unworkable or at least impractical. If a party considered a forum to be inappropriate, it would be open to that party to seek to transfer the matter to another more appropriate participating court. However, we recognise that extending the cross-vesting scheme must be accompanied by action to increase the expertise of the magistracy as recommended at 130.^[100]

15.40 Under the proposed scheme, Family Law Act s 69ZK, which allows orders to be made under the Act only in restricted circumstances where there is a current care and protection order, would become redundant.

15.41 The proposed scheme should not apply to certain kinds of proceedings and powers, for example those generally within the exclusive jurisdiction of superior courts such as injunctive or contempt powers.^[101] It should also not extend to the statutory welfare jurisdiction of the Family Court.