Jurisdictional intersections

Section 69J of the Family Law Act provides that each state and territory court of summary jurisdiction can exercise federal family law jurisdiction. Section 69N qualifies this in that a court of summary jurisdiction cannot hear defended proceedings for a parenting order, other than a child maintenance order, without the consent of all the parties. If consent is not given, the court is obliged to transfer the proceedings to the Family Court, the Family Court of Western Australia, the Supreme Court of the Northern Territory, or the Federal Magistrates Court (FMC), as the case requires.

On the other hand, while federal family courts are not charged with responsibility for investigating allegations of child maltreatment, issues of family violence and child abuse may be relevant to decisions about what is in the best interests of the child in parenting decisions. Child protection agencies generally do not join these proceedings unless they are advised of the family law proceedings and judge the alleged issues of child maltreatment to be serious enough to warrant intervention.

In a report to the Commonwealth Attorney-General in 2002, the Family Law Council recommended that a decision should be taken as early as possible whether a matter should proceed under the Family Law Act or under child welfare law with the consequence that there should be only one court dealing with the matter.[1] In its 2009 advice, the Family Law Council also recommended a referral of power to the Commonwealth Parliament to allow federal family courts to have concurrent jurisdiction with the state courts to deal with all matters in relation to children including family violence, child protection and parenting orders.[2]

An alternative to a unified federal Family Court is to amalgamate the Family Court with the various state courts. The exercise of federal jurisdiction by the Family Court of Western Australia is an example of this approach. Section 36(6) of the Family Court Act 1997 (WA)provides that where a child, who is the subject of proceedings (between separating parents or parents and extended family members) appears to be in need of protection within the meaning of the Children and Community Services Act 2004 (WA), the court has, in relation to the child, all of the powers of the Children’s Court in addition to the powers conferred by the Family Court Act.

The Commissions’ preliminary view is that, wherever possible, matters involving children should be dealt with in one court—or as seamlessly as the legal and support frameworks can achieve in any given case. This was also the outcome recommended by the Family Law Council in 2002 as part of its ‘one court principle’—that is, that state and territory courts should have a broad power to make residence and contact orders under the Family Law Act in child protection proceedings so that one court can deal with all substantive matters and ensure the child’s best interests and welfare are addressed.[3]

The Commissions are interested in whether there is value in providing local and magistrates courts with expanded jurisdiction under the Family Law Act. A practical limitation on the capacity of magistrates courts to hear Family Law Act matters is that they do not have the associated counselling services or family dispute resolution processes of the Family Court and there are limited Family Court counselling services in rural areas. The Commissions note however, that magistrates courts regularly make interim children’s orders under the Family Law Act, particularly in regional areas.

Ideally, one court should be responsible for exercising jurisdiction in relation to those matters where a substantial or permanent shift of parental responsibility for a child is first raised as an issue for resolution. The first point of engagement should facilitate the resolution of relevant issues as far as possible, or assist in the smooth transition to other parts of the legal or services framework more suited to achieve such outcomes.

The power of children’s courts to make contact orders in proceedings before them appears to complement their care and protection jurisdiction. Such a power is necessary if governments are to adopt the Family Law Council’s ‘one court principle’.

Question 14–1 Can children’s courts be given more powers to ensure orders are made in the best interests of children that deal with parental contact issues? If so, what powers should the children’s courts have, and what resources would be required?

Question 14–2 Should the Family Law Act 1975 (Cth) be amended to extend the jurisdiction which state and territory courts already have under pt VII to make orders for a parent to spend time with a child?

Question 14–3 When should state and territory children’s courts have power to determine contact between one parent and another in matters that are before the court in child protection proceedings?

Question 14–4 What features of the Family Court of Western Australia should be replicated in other jurisdictions?

Question 14–5 Is there any role for a referral of legislative power to the Commonwealth in relation to child protection matters? If so, what should such a referral cover?

[1]Family Law Council, Family Law and Child Protection—Final Report (2002), Rec 13.

[2]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), Rec 7.

[3]Family Law Council, Family Law and Child Protection—Final Report (2002), 85–86. See Rec 12.