Administrative arrangements

A number of the problems identified in the area of child protection are caused by a lack of communication and coordination between the child protection and family law systems. This section considers the administrative arrangements in place to facilitate communication and coordination between the systems.

Protocols and memorandums of understanding

Some state and territory child protection agencies have protocols or MOUs with the Family Court and the FMC. These govern the handling of child protection matters and are designed to assist cooperation, clarify procedures and improve decision-making. The purpose of the majority of the MOUs is to meet the protective needs of children. The Western Australian MOU takes a more expansive approach and aims ‘to provide the best possible outcomes for children’.

Stakeholders have told the Commissions that these arrangements work well where they are in place. They shape the parties’ expectations as to what each will do, and in what circumstances. It appears to be appropriate and desirable that there be nationally uniform or consistent approaches to information sharing between child protection agencies and federal family courts.

The Commissions’ preliminary view is that all jurisdictions should have MOUs and protocols—as appropriate—to govern key elements of these relationships. They establish the basic rules for dealing with cases where family law proceedings require action or intervention by a state or territory child protection system. It is particularly important that where provisions in the Family Law Act provide a power to request information or assistance from a child protection agency, that the basis for the court’s use of these powers be set out clearly and be readily available to judicial officers, parties, legal advisers and other courts.

The Commissions are interested in hearing whether the variation in the protocols across the jurisdictions causes any difficulties in relation to information flow and also as to how knowledge of the MOUs and protocols can be improved.

Proposal 14–3 All states and territories should develop a Memorandum of Understanding or Protocol to govern the relationship between federal family courts and child protection agencies.

Question 14–13 Does the variation in the content of the protocols cause any difficulties and, if so, what changes should be made to facilitate the flow of information between the family courts and child protection agencies? What measures should be taken to ensure that the protocols are effective in practice?

Question 14–14 How could the Memorandums of Understanding and Protocols for exchange of information between federal family courts, child protection agencies and legal aid commissions be better known within courts, and beyond them?

Cooperative case management

The Magellan project

The Magellan project is a case management approach to address the needs of children and families where serious allegations of sexual abuse or physical abuse are raised during parenting disputes in the Family Court. The project involves special management of cases in which serious allegations of sexual or physical abuse of children are made. Once a case is identified as suitable for the Magellan pathway, it is dealt with by a small designated team of judges, registrars and family consultants. The Magellan project relies on a collaborative and highly coordinated set of processes and procedures, with significant resources directed to each case in the early stages.[16] A crucial aspect is strong inter-agency coordination, in particular with state and territory child protection agencies, which ensures that problems are dealt with efficiently and that information sharing is of high quality. An independent children’s lawyer is appointed to every Magellan case. Formal protocols for information sharing between child protection agencies and federal family courts apply.

The FMC has no current involvement with the Magellan project as it is a Family Court initiative. With the implementation of a common registry for the Family Court of Australia and the FMC, the transfer of matters between courts appears to have become less of an issue for complex child abuse cases which are part of the Magellan project. Neither of the annual reports of the two courts for 2008–09 raises this as an issue. The FMC has argued that, with the introduction of the common registry, the Magellan project should be extended to include that court.

The Commissions’ preliminary view is that the Magellan project should be extended to all qualifying cases, whether in the Family Court, FMC or a other federal court structure for family cases.

Collaborative relationships between all of the agencies involved in family law and child protection must be strong, in order to ensure that child abuse is identified and responded to appropriately. Other options for ensuring an effective response in child protection cases in the family law system have been proposed. The Family Law Council recommended the establishment of a national child protection service to investigate allegations of child maltreatment that emerge from family law proceedings, because child protection agencies are insufficiently resourced to do that work.

A further option is for an early decision to be made about which court can best handle a particular case. Family court parenting orders can confer parental responsibility on persons other than the parents. In child protection, the child protection agency has a controlling influence in according parental responsibility or guardianship in relation to a child. In some cases a decision could be made early as to whether the matter should proceed under the Family Law Act or under child protection law. This view was previously expressed by the Family Law Council as the ‘one court principle’,[17] and was endorsed by the Wood Inquiry.[18]

The Commissions are interested in responses to these proposals and to hear views as to what changes to law and practice are required to prevent children from ‘falling through the cracks’ between the child protection and family law systems.

Proposal 14–4 The Australian Government should encourage all jurisdictions to develop consistent protocols between federal family courts and state and territory child protection agencies which include procedures:

  1. for electing the jurisdiction in which to commence proceedings;
  2. for dealing with requests for documents and information under s 69ZW of the Family Law Act 1975 (Cth);
  3. for responding to subpoenas issued by federal family courts; and
  4. which permit a federal family court to invite a child protection agency to consent to an order being made which allocates parental responsibility in the child protection agency’s favour, in circumstances where it determines that no order should be made in favour of either parent.

Question 14–15 In what ways can the principles of the Magellan project be applied in the Federal Magistrates Court?

Question 14–16 What changes to law and practice are required to prevent children falling through the gaps between the child protection and family law systems?

Question 14–17 Can the problems of the interactions in practice between family law and child protection systems be resolved by collaborative arrangements such as the Magellan project? Are legal changes necessary to prevent systemic problems and harm to children, and, if so, what are they?

[16]D Higgins, Co-operation and Coordination—An Evaluation of the Family Court of Australia’s Magellan Case Management Model (2007), 21.

[17]Family Law Council, Family Law and Child Protection—Final Report (2002).

[18]J Wood, Report of the Special Commission of Inquiry into Child Protection Services in NSW (2008).