21.10.2010
1.124 On 7 October 2010, as this Report was in press, the Commissions received the report of the Victorian Law Reform Commission, Protection Applications in the Children’s Court, Final Report 19, 2010 (VLRC 19). There are many overlaps and synergies between VLRC 19 and this Report. The Commissions note briefly below the intersections between the two reports, identifying the chapter in this Report, followed by comments concerning the VLRC’s proposals.
1.125 Chapter 19—The Intersection of Child Protection and Family Laws. In Chapter 19, the Commissions consider the practical and legal difficulties arising from the fact that child protection laws are state and territory laws, whereas family laws are federal laws. The desirability of having one court deal with both areas of law and the problems of achieving this are considered. It is recommended, amongst other things, that state and territory children’s courts should have the power to make parenting orders under the Family Law Act in certain circumstances. VLRC 19 also supports the ‘one court’ principle—considered in Chapter 3 of this Report—and proposes that, in child protection cases, the Children’s Court of Victoria should be permitted to make an order granting guardianship and/or custody of the child to one parent to the exclusion of the other, when satisfied that this order is necessary to meet the needs of the child (VLRC 19, Proposal 2.23).
1.126 Chapter 20—Family Violence, Child Protection and the Criminal Law. In Chapter 20, the Commissions recommend the expansion of the powers of children’s courts to enable those courts to make protection orders under family violence legislation in certain circumstances. The VLRC takes the same approach and proposes the amendment of the Family Violence Protection Act 2008 (Vic) to permit the Children’s Court of Victoria to make orders when a child, who is the subject of a child protection application, is a child of ‘the affected family member’ or the ‘protected person’ (VLRC 19, Proposal 2.24).
1.127 Chapter 23—Intersections and Inconsistencies.In Chapter 23, the Commissions consider the use of alternative dispute resolution (ADR) in child protection cases and the challenges presented by family violence. The Commissions make recommendations concerning the importance of taking family violence into account in child protection ADR in a number of ways. The VLRC proposes expanding and developing the use of ADR in child protection cases and that, in Victoria, a ‘graduated range of supported, structured and child centred agreement-making processes should become the principal means of determining the outcome of child protection applications’. The VLRC considers, among other things: the design of these processes; the need for risk assessment; management of the power relationships inherent in child protection cases; the availability of legal advice to the parties; participation of children and young people in ADR processes; and training and qualifications of ADR practitioners.