Families in both courts—duplication of proceedings

19.146 The possibility that proceedings will be duplicated also arises in child protection cases. For example, proceedings may be commenced in a children’s court by a child protection agency but, whilst those proceedings are in train, a parent who wishes to spend time with her or his children, will make an application to a family court for an order. While orders of family courts defer to those of children’s courts, both the parties and the court may nevertheless expend considerable time and effort dealing with the same family and the same facts. Children who are mired in these parallel proceedings may be subjected to stress, uncertainty and perhaps repeated contact with courts and other agencies in two jurisdictions.

19.147 In most states and territories, the relevant child protection authorities and family courts have entered into protocols that assist in coordinating cases that may be in family courts or children’s courts.[156]

19.148 This problem has received repeated judicial and academic attention and criticism.[157] In 1995, the Hon Alistair Nicholson CJ (as he then was) said in Re Karen:

It is all too common for departments in the states and territories and this court to be proceeding along parallel, but divergent tracks in relation to issues of children’s welfare.[158]

19.149 The ALRC and HREOC noted the same problem in their joint report in 1997.[159]

19.150 The Family Law Council observed in 2002 that there is a ‘need for state and territory government to reach agreement with the Commonwealth at the highest levels to … avoid unnecessary duplication of effort and confusion of orders’.[160] Again, in 2009, the Council noted that many families are involved in proceedings in more than one jurisdiction, with increased likelihood that inconsistent orders may be made, people will be put at risk, and will suffer added strain.[161]

19.151 The research by Kelly and Fehlberg in 2002, noted above, provides empirical evidence of cases where proceedings were on foot in both courts at the same time with very little communication between the two courts.[162] In one case, despite the provisions of s 69ZK(1) discussed above, conflicting orders were made in the children’s court and the family court on the same day.[163] Communication did take place in some cases, but Kelly and Fehlberg concluded that whether or not this happened seemed to be a function of which social worker was allocated to the case.[164] They also noted in their sample some very complex cases involving long term litigation in both courts, where the availability of two jurisdictions to the parties appeared to have offered them two opportunities to argue their cases to the full, ‘accentuating the emotional harm to the children’.[165]

19.152 Professor Thea Brown and her co-researchers evaluating the Magellan program also found cases involving duplication of proceedings in both courts.[166] She asked why there were cases that involved a final hearing in two different courts, why there was duplication of time, effort and funding, and what impact the duplication has on the children involved.[167] In half of the cases reviewed, families were involved in other legal proceedings. Although some of this duplication may be unavoidable, it caused delays and stress to the children who were involved in multiple legal proceedings.[168] It is likely that some duplication of proceedings relates to cases that are particularly complex and difficult to manage. Nevertheless, one of the lessons of the Magellan program appears to be that if multiple and complex problems are dealt with in one court, there will be discernible benefits to the parties, the children and in reducing costs.[169]

Submissions and consultations

19.153 Although few stakeholders referred specifically to duplication of proceedings as an issue, the focus of many submissions was the more general point that there should be only one court dealing with these issues. For example, the Victorian Office of the Child Safety Commissioner referred to the importance of reducing duplication, and removing the need for attendance at multiple courts and repeated court appearances.[170] UnitingCare Children, Young People and Families submitted that there should be consistency in the MOUs and protocols between family courts and child protection agencies, with cross-jurisdictional training in interpretation of these protocols.[171]

Commissions’ views

19.154 The Commissions have a continuing concern that the existing protocols and MOUs that govern the relationship between family courts, children’s courts and child protection agencies may not be operating effectively and that the impact on children will be detrimental. The recommendations made above for increased involvement of child protection agencies in family courts and for children’s courts to exercise jurisdiction under the Family Law Act may resolve some of the problems of duplication. In addition to these measures, family courts and children’s courts should review their protocols and practices for communicating about cases in both courts and improve that communication so that duplication does not occur.

Recommendation 19–5 Federal, state and territory governments should ensure the immediate and regular review of protocols between family courts, children’s courts and child protection agencies for the exchange of information to avoid duplication in the hearing of cases, and that a decision is made as early as possible about the appropriate court.

[156] Family Law Council, The Best Interests of the Child? The Interaction of Public and Private Law in Australia—Discussion Paper (2000), 38. Most of these protocols are not publicly available.

[157]See, eg, Re Karen (1995) 19 Fam LR 528; F Kelly and B Fehlberg, ‘Australia’s Fragmented Family Law System: Jurisdictional Overlap in the Area of Child Protection’ (2002) 16 International Journal of Law, Policy and the Family 38; T Brown, M Frederico, L Hewitt and R Sheehan, Problems and Solutions in the Management of Child Abuse Allegations in Custody and Access Disputes Before the Family Court of Australia (1998); J Seymour, ‘The Role of the Family Court of Australia in Child Welfare Matters’ (1992) 21 Federal Law Review 1.

[158]Re Karen (1995) 19 Fam LR 528, 556.

[159] Australian Law Reform Commission and Human Rights and Equal Opportunity Commission, Seen and Heard: Priority for Children in the Legal Process, Report 84 (1997), [15.11]–[15.13].

[160] Family Law Council, Family Law and Child Protection: Final Report (2002), 91.

[161] Family Law Council, Improving Responses to Family Violence in the Family Law System: An Advice on the Intersection of Family Violence and Family Law Issues (2009), 60.

[162] F Kelly and B Fehlberg, ‘Australia’s Fragmented Family Law System: Jurisdictional Overlap in the Area of Child Protection’ (2002) 16 International Journal of Law, Policy and the Family 38.

[163] Ibid, 55.

[164] Ibid, 56.

[165] Ibid, 56.

[166] T Brown, R Sheehan, M Frederico and L Hewitt, Resolving Family Violence to Children: An Evaluation of Project Magellan (2001).

[167] Ibid, 38.

[168] Ibid, 47.

[169] Ibid.

[170] Office of the Child Safety Commissioner, Submission FV 215, 30 June 2010.

[171] UnitingCare Children Young People and Families, Submission FV 151, 24 June 2010.