The relationship between family law and child protection law

19.46 The Family Law Act and state and territory child protection legislation both enable courts to make orders regulating and displacing parental responsibility for children. The Family Law Act is generally invoked when there is a dispute between parents. However, any person who is concerned with the wellbeing of a child can apply for a parenting order under the Family Law Act.[64] A parenting order made by a court under pt VII of the Family Law Act can stipulate the content of the parties’ parental responsibilities to a very broad extent,[65] and typically determines where the child will live and how much time he or she will spend with each parent.

19.47 It is common for child protection concerns to be raised in an application under the Family Law Act. In 2007, a study of 300 court files involving parenting disputes from three registries of the Family Court and the Federal Magistrates Court revealed that allegations of child abuse were raised in between 19% to 50% of all cases: and more than half of the cases in the sample involved allegations of family violence, many at the severe end of the spectrum.[66]

19.48 While child protection concerns may arise in parenting matters in federal family courts, child protection proceedings are usually brought under state and territory laws and determine whether a child is in need of care or protection. They are almost always initiated by a child protection agency.[67] A range of care and protection orders may be made, allocating parental responsibility for a child, including determining where a child will live and who can have contact with that child. Orders that can be made include:

  • orders giving parental responsibility and care to the relevant minister or child protection department;

  • orders giving parental responsibility and care to relatives or other appropriate people;

  • orders giving shared parental responsibility to the parents and the minister or child protection agency;

  • orders for supervision by the department, with or without undertakings;

  • undertakings or recognisances by parents or children, with no further supervision; and

  • orders in relation to contact arrangements.[68]

19.49 The same families could be involved in both child protection and family law proceedings and there could be conflicting orders. Section 109 of the Australian Constitution provides that when a law of a state is inconsistent with a law of the Commonwealth, the latter shall prevail, and the state law shall, to the extent of the inconsistency, be invalid. However, as noted in Chapter 2, in the case of child protection legislation, the federal Family Law Act defers to orders under state legislation because the Commonwealth parliament does not have legislative competence in relation to such matters. Section 69ZK(1) of the Family Law Act provides that a court having jurisdiction under the Act must not make any order under the Act (other than a child maintenance order) in relation to a child who is under the care of a person pursuant to a state or territory child welfare law,[69] unless:

(a) the order is expressed to come into effect when the child ceases to be under care; or

(b) the order is made in proceedings relating to the child in respect of whom the written consent of a child welfare officer of the relevant state or territory has been obtained.

19.50 A ‘child welfare law’ is any law of a state or territory that relates to the incarceration of a child for a criminal offence,[70] as well as any law listed in sch 5 of the Family Law Regulations 1984 (Cth). Schedule 5 sets out 38 state and territory laws, including those dealing with child protection.[71] Because the circumstances of children and families are highly likely to change over time, the usual course is for the family courts not to make an order of the kind referred to in s 67ZK(1)(a) but to terminate or adjourn any proceedings of federal family courts for the period of the child’s care under child protection laws.[72] Section 69ZK(2) confirms that state and territory courts may make child protection orders, including where a parenting order is in place under the Family Law Act, and, in such cases, the child protection order prevails over the Family Law Act order so long as it is in force.[73]

19.51 However these provisions only define the relationship between orders of children’s courts and family courts. Other difficulties arise in practice. When proceedings are commenced, it is not always possible for child protection workers, family members or lawyers to predict which is the most appropriate court to make the decision about whom a child should live with and spend time with. Proceedings in children’s courts are almost always instigated by child protection agencies, whereas proceedings in family courts are instigated by a parent, or another person concerned with the wellbeing of a child. Some cases involving child abuse may therefore commence in a family court—a court that does not have the capacity to investigate child abuse and may not have the power to make the order that is needed. Some cases may commence in a children’s court, but after investigation and intervention by a child protection agency and a decision that the state does not need to intervene, there remains a need to determine which parent a child should live with, and whether he or she should spend time with the other parent. Some children may be the subject of proceedings in both courts.

19.52 There are three main issues that arise from this jurisdictional tangle:

  • family courts and their relationship with child protection agencies;

  • the power of children’s courts to make parenting orders; and

  • the problem of duplication of proceedings, with families in both courts.

[64]Family Law Act 1975 (Cth) s 65C. See also KAM & MJR [1998] FamCA, in which Justice Burr found that any person may file an application for a parenting order, but to be granted such an order the person must demonstrate a ‘concern with’ the care, welfare and development of the child. The required degree of that nexus depends on the facts of the case.

[65] A Dickey, Family Law (5th ed, 2007), 257.

[66] L Moloney and others, Allegations of Family Violence and Child Abuse in Family Law Children’s Proceedings: A Pre-reform Exploratory Study (2007), prepared for the Australian Institute of Family Studies. The variance between the figures for allegations of abuse arises because the study examined two samples, general litigants and judicial determinations in both the Federal Magistrates Court and the Family Court of Australia. The largest figure, 50%, relates to judicially determined matters in the Family Court of Australia.

[67] In the ACT, someone other than the chief executive may apply for a protection order with the leave of the Court: Children and Young People Act 2008 (ACT) s 425. Protection applications in Victoria may be made by the Secretary, or by a member of the police force: Children, Youth and Families Act 2005 (Vic) ss 181, 240(1), 240(3), 243.

[68] These orders may not be available in all jurisdictions, and some may be differently named: Australian Institute of Health and Welfare, Child Protection Australia 2008–09, 88–91.

[69] The child must be under care, not simply the subject of concern’ or ‘known’ to the relevant child protection agency: R v Lambert (1980) 146 CLR 447.

[70]Family Law Act 1975 (Cth) s 4; Family Law Regulations 1984 (Cth) reg 12B(1).

[71] It appears that some relevant legislation from a number of jurisdictions has not been prescribed as required by Family Law Act 1975 (Cth) s 4; Family Law Regulations 1984 (Cth) reg 12B(2), sch 5. See also Acts Interpretation Act 1901 (Cth) s 10. The Commissions note that as at 30 July 2010, the list of prescribed laws incorrectly prescribes: (item 6) Children and Young Persons Act 1989 (Vic), rather than the Children, Youth and Families Act 2005 (Vic); (item 28) Community Welfare Act 1983 (NT), rather than the Care and Protection of Children Act 2007 (NT); (item 32) Children and Young People Act 1999 (ACT), rather than the Children and Young People Act 2008 (ACT).

[72] R Chisholm, The Child Protection–Family Law Interface (2009), 25.

[73] In Western Australia and South Australia, the provision in s 69ZK(1) enabling a child welfare officer to give consent to proceedings is inoperative until a relevant proclamation is made under s 69ZF: see A Dickey, Family Law (5th ed, 2007), 276.