Interactions and overlaps

Children

2.82 Protection issues concerning children are mainly the domain of the state and territory children’s courts as the Commonwealth has only limited legislative power with respect to children, principally reflected in the Family Court’s power to make parenting orders.

For example, a parent in a Family Court proceeding may allege that the other parent has been violent towards the child. Conversely, in exercising their power to make protection orders, State and Territory children’s courts sometimes make orders on issues that could also be the subject of parenting orders made by the Family Court. For example, in making a protective order, a children’s court may make orders regarding access and custody.^[103]

2.83 Section 69ZK of the Family Law Act provides that state and territory child welfare laws and orders made under those laws take precedence over Family Court orders.^[104] In contrast, in the area of family violence, ‘live with’ and ‘reside with’ orders made under the Family Law Act can be used to defeat state and territory family violence protection orders.^[105]

2.84 In general terms, the Family Law Act governs the resolution of private disputes about the parenting of all children in Australia, while state and territory ‘child protection laws’—that is, laws that aim to protect children from abuse and neglect^[106]—govern the resolution of public disputes between state or territory governments and individuals about the care and protection of their children.

2.85 The contrasting nature of the different proceedings was described by the Family Law Council:

[T]he applicant in family proceedings in State and Territory children’s courts is always the State and Territory child protection authority. Hence, children’s court disputes are public law disputes with the State acting as applicant. This is in contrast to disputes under the Commonwealth [Family Law Act] where both the applicant and respondent are usually a parent or family member, and the dispute is thus a private one. There can, however, be a private element to child protection disputes and a public element to Family Court disputes. For example, in a matter before the Family Court an allegation of abuse may be made requiring child protection authorities to become involved. At the State and Territory level, once the public law threshold for intervention has been met, a children’s court may make custody and access orders in favour of individuals in the context of exercising their protective jurisdiction (although the ambit of this power depends on the order made), thus creating a private law dimension in such disputes.^[107]

2.86 The Council also observed that despite the differences between the jurisdictions and the ‘distinct divide between private and public law’, the orders available under the state and territory family violence and child protection legislation ‘cover much of the same ground’ as the Family Law Act.^[108]

Family violence

2.87 The primary mechanism exercised at state and territory level in relation to family violence is that of protection orders in magistrates courts—and these may interact with the Family Law Act:

There is often interplay between State Protection orders which provide for the protection of a parent and their children by prohibiting the alleged perpetrator (the other parent) from coming within a defined distance of the parent and child, and federal family court orders that provide for the child to spend time with that parent.^[109]

2.88 Division 11 of the Family Law Act was introduced with the objective of resolving inconsistencies between state and territory family violence orders and Family Law Act contact orders, as they were known at the time.^[110] However ‘the possibility of inconsistent orders still exists where one court orders contact while another court prohibits it’:^[111]

While the [Family Law Act] contains quite detailed procedures for the Court to follow when the possibility of inconsistent orders arises, the written law is not necessarily the same as the law in practice.^[112]

Fragmentation

Fragmented jurisdiction

2.89 The net effect of the complexities of the division of power between the Commonwealth and the states and territories is a system which is fragmented. As Federal Magistrate Dr Tom Altobelli remarked:

The chaos and complexity of jurisdiction in Australian family law is mainly attributable to Australia’s federal system of government and the distribution of powers under s 51 of the Constitution. Under the Constitution, neither the Commonwealth nor the states have exclusive legislative competence in the area of family law. This has meant that a complex and fragmented system for determining family law issues has developed and been exacerbated by attempts to interpret constitutional powers in various ways.^[113]

2.90 Moreover, the boundaries between the various parts of the system are not always clear and jurisdictional intersections and overlaps are ‘an inevitable, but unintended, consequence’.^[114]

2.91 The fragmentation of the system has a particular impact in relation to child protection issues. As noted by the Family Law Council, cases in which children are allegedly being abused may be dealt with on the initiative of a child protection agency in a children’s court. However, such cases are increasingly being litigated in family courts—as a private law matter—where a parent must take responsibility for proving the abuse. Family courts have limited capacity to generate independent evidence of allegations of child abuse.^[115] The levels of complexity increase for ‘blended’ families, where the parents have had children with different partners:

For example, one child may be the subject of a State child protection order (public law) and the arrangements in respect of the other child(ren) are determined under private law (federal family courts). There is also the concern in respect of those children who are the subject of temporary child protection orders in the State courts but the orders are not pursued by the child welfare authority in the State or Territory courts on the basis that the ‘relative’ is to apply to the federal family courts for parenting orders.^[116]

2.92 Family violence issues also have to encounter the ‘bifurcated institutional framework’^[117] generated by the federal/state divide:

Fragmentation of the law on jurisdictional lines results in the possibility of differences of approach to similar problems. It may result in an unevenness in the development of facilities created for dealing with similar problems. It may lead to manoeuvring and the use of subterfuge as parties attempt to get themselves within a particular jurisdiction not otherwise open to them.

These effects may seem pretty unsatisfactory to anyone who is concerned that the best legal solutions and facilities should be available for dealing with problems which so closely affect the happiness of so many families and, particularly, the children.^[118]

2.93 There is a danger, moreover, that issues concerning violence may fall into the cracks between the systems. As noted by the Family Law Council in December 2009:

more than one court may be involved in a particular family breakdown. Disputes cannot be neatly divided into private and public areas of law and parties will often have to institute or be engaged in proceedings in various legal forums to have all of their issues determined. … The overlapping jurisdictions cause significant angst for the parties involved and considerable difficulties for the courts.^[119]

2.94 The consequence of the division of powers means that ‘neither the Commonwealth nor the States’ jurisdiction provides a family unit with the complete suite of judicial solutions to address all of the legal issues that may impact on a family in respect of their children’.^[120]

2.95 Throughout this Inquiry the Commissions heard about the fact of, and problems arising from, the fragmentation of jurisdiction. As a result, the effective protection of those who experience family violence is compromised by gaps arising as a result of the interaction between the jurisdictions.

Fragmented practice

2.96 The fragmentation of the system has also led to a fragmentation of practice. A number of stakeholders in this Inquiry commented that the different parts of the legal framework dealing with issues of family violence operated in ‘silos’ and that this was the key problem in the system.^[121] Although the laws utilised within each ‘silo’ might be perceived to operate effectively, or to require minor refinement and change, the problems faced by victims of violence required engagement with several different parts of the system. Consequently these people could be referred from court to court, agency to agency, with the risk that they may fall between the gaps in the system and not obtain the legal solutions—and the protection—that they require.^[122]

2.97 The next chapter considers the framework for reform developed in this Inquiry to meet the problems of fragmentation considered in this chapter.