Legal framework for interaction between the two systems

Another issue for this Inquiry is the need to ensure that each system knows about what the other is doing. Matters involving allegations of child abuse or neglect often end up being heard simultaneously in family law and child protection proceedings. This can happen if the fact that there are proceedings in a court in one jurisdiction is not communicated to a court in the other.

Notification of child maltreatment in Family Courts

The Initiating Application for proceedings in the Family Court and Family Court of Western Australia requests information about ‘any existing orders, agreements, parenting plans or undertakings’ to this or any other court about ‘family law, child support, family violence or child welfare issues’ concerning any of the parties or children listed in the application.^[4] The purpose of the form is to capture information about procedural, interim or final orders from a federal family court. It intent is to ensure that the court is aware of the context in which orders are sought, for example, whether the party (and the party’s child) is already involved in parallel child protection proceedings, or whether an order is in current effect under a state or territory child welfare law. Contextual awareness enables the court to determine whether to proceed with, adjourn or terminate the proceeding.

A related document is Form 4—Notice of Child Abuse or Family Violence (Form 4). As noted on the form, it is to be used:

a) when allegations of child abuse or risk of child abuse are made and a prescribed child welfare authority must be notified of the allegations (section 67Z of the Family Law Act 1975), or

b) if, in a case where an application is made to the court for a Part VII order in relation to a child, a person alleges that there has been abuse of a child or family violence or there is a risk of abuse of a child or family violence and the allegation of abuse, family violence or risk of abuse or family violence is relevant to whether the court should grant or refuse the application (Rule 2.04A of the Family Law Rules 2004).^[5]

The Family Law Council considered that Form 4 should remain the key means of notification of child abuse issues in family law proceedings. The Council recommended some amendments to Form 4 to make it more user-friendly.^[6] The Chisholm Review preferred a general screening of all cases for family violence and child abuse issues.^[7]

The Commissions consider that there is scope for improvement to the existing application forms. In preliminary consultations the Commissions have heard that the Initiating Application (Family Law) could be improved to make it clearer to parties that the court needs to know, and they have a duty to disclose, whether there are child protection proceedings on foot, and whether there is a current care order in relation to the child. It has been suggested that the reference to ‘child welfare issues’ in Part F of the Initiating Application (Family Law) is too opaque, and may lead parties to overlook the function of the form in eliciting information about state or territory child protection proceedings and orders.

A question which targets significant concerns or fears the party has for their safety, or for the safety of their child may elicit more detailed information. The purpose of a question with this focus is twofold. First, it would clearly signal to the court the possibility that there are current child protection or family violence concerns in the proceeding which require investigation and assessment. Secondly, the focus on ‘significant concerns’ raises the bar to approximate state and territory child protection thresholds, so that if an affirmative answer were given, the court has a prima facie trigger at an early stage to inform the relevant child protection agency in relation to child safety concerns, and a longer lead time to enable the concerns to be investigated. This would also facilitate appropriate intervention in the proceedings by the state.

Part F of the Initiating Application (Family Law) should be amended to encourage parties to identify whether there are or have been child protection concerns as early as possible in proceedings. The Commissions are interested in hearing about the practical changes that could be made to the Initiating Application (Family Law) to make it clearer that parties are required to disclose current or prior child protection proceedings and current child protection orders. Further, the Commissions seek suggestions as to other ways that child safety concerns may be revealed at the commencement of proceedings under the Family Law Act so that they may be drawn to the attention of child protection agencies.

Risk assessment

The Commissions understand that the Australian Government is currently considering options for implementing a family violence screening framework. Screening frameworks are routinely used by family dispute resolution practitioners and by other agencies in the family law system. The Commissions’ preliminary view is that state and territory child protection agencies should contribute to any screening framework for family violence and child maltreatment. Early and active involvement by child protection agencies provides an opportunity for participants in both systems to better understand their respective roles and responsibilities.

This may best occur if a representative of the child protection agency is actively involved in the screening process. A direct role means that the child protection system would have an immediate stake in dealing with the case. The common family violence risk assessment and risk management tool developed by the Victorian Government may provide useful guidance for this work.^[8]

Information flow

Information from the family law system to child protection system

The Family Law Act contains two provisions requiring family courts to notify child protection agencies in certain circumstances. First, where a Form 4 is filed, s 67Z(3) requires the Registry Manager of the court to notify a prescribed child welfare authority. Secondly, where an officer or professional in a family court has reasonable grounds for suspecting that a child has been abused, or is at risk of being abused, s 67ZA(2) requires them to notify a prescribed child welfare authority.

Section 67ZA(3) provides that a person may notify child protection agencies where the person

has reasonable grounds for suspecting that a child:

(a) has been ill treated, or is at risk of being ill treated; or

(b) has been exposed, or subjected, or is at risk of being exposed or subjected, to behaviour which psychologically harms the child.

Whether the relevant child protection agency takes action depends on the threshold for taking action and the particular focus in the relevant jurisdiction. In child protection proceedings the focus is on determining whether, as a matter of fact, the child is in current need of care, at risk, or in need of protection. While evidence of a parent’s past abusive behaviour may be relevant in family law proceedings, that evidence does not necessarily assist the child protection agency to determine whether the child is currently at risk of harm.

Information from the child protection system to the family law system

In child protection cases, the child protection agency initiates proceedings by taking protective action in a court. The responsibility for obtaining evidence falls to the child protection agency. In family law proceedings, in the absence of intervention from a child protection agency the court may not have relevant evidence relating to the alleged maltreatment of a child. The Family Law Act includes mechanisms for seeking such information from child protection authorities in the relevant jurisdiction—by subpoena and a power to seek information and documents from child protection agencies.

Subpoenas

Subpoenas may be issued under pt 15.3 of the Family Law Rules. The power of a federal family court to compel production of documents from a child protection agency under a subpoena was examined by the High Court in Northern Territory of Australia v GPAO.^[9] The specific issue was whether under the former Family Law Rules 1984 (Cth)O 28 r 1 the court may compel production of documents which are the subject of a ‘public interest’ privilege under s 97(3) of the Community Welfare Act (NT). A majority of the court held that the subpoena issued by the Family Court could not defeat state and territory confidentiality provisions.

Orders to produce documents or information

Section 69ZW of the Family Law Act provides that the court may make an order in child-related proceedings requiring a prescribed state or territory agency to provide the court with the documents or information specified. The order under s 69ZW overrides any inconsistent state and territory law, but the agency does not have to comply with the order in relation to:

(a) documents or information not in the possession or control of the agency; or

(b) documents or information that include the identity of the person who made a notification.^[10]

Once information is provided in response to the order, the court must admit into evidence any such information on which it intends to rely.^[11] There is qualified protection for the identity of the person who made the notification—if the person does not consent, the court can only disclose their identity if satisfied that it ‘is critically important to the proceedings and that failure to make disclosure would prejudice the proper administration of justice’.^[12]

Each state and territory child protection law contains provisions for protecting the confidentiality of information collected by child protection agencies or for precluding such information from being admissible in another proceeding.

The Commissions have heard that state and territory child protection agencies provide very little information voluntarily to family courts. They also frequently challenge subpoenas issued by federal family courts. The Commissions understand from preliminary consultations that a number of child protection agencies regard the decision in Northern Territory of Australia v GPAO as supporting a view that they cannot be compelled to answer subpoenas from a federal family court. This view, which also apparently affects the attitude of some jurisdictions to the exercise of the court’s power under s 69ZW of the Family Law Act could constitute a serious systemic problem because of the number of state and territory laws which may impact upon the sharing of child protection information between jurisdictions.

Child protection interventions in family law proceedings

A child protection agency may be involved in family law proceedings in three principal ways: the relevant agency may intervene as a party; parental responsibility may be conferred on the child protection agency; and child protection orders may be registered under the Family Law Act. In addition a child protection agency may be involved through the Magellan project, which is considered below.

Securing intervention

Under s 92A of the Family Law Act, a prescribed welfare authority is entitled to intervene in proceedings where it is alleged that a child has been abused or is at risk of being abused. Section 91B enables a family court to request intervention by a child protection officer in a matter involving a child’s welfare. An officer who agrees to intervene is deemed to be a party to the proceedings. An officer may also decline to intervene.

It appears that requests for intervention are regularly declined. The Wood Inquiry identified four reasons why child protection agencies may decide not to intervene in family law proceedings:

• the evidence may not justify intervention;
• the evidence relates to past or future, rather than current concerns;
• the threshold for notifications of abuse under care and protection legislation are higher than the Family Law Act; and
• a party in proceedings for a parenting order under the Family Law Act may be deemed by a child protection agency to have taken sufficient protective action in relation to a child.^[13]

Clearly, the best outcome for a child at significant risk of harm is for: the judge to be made aware of concerns at an early stage; the relevant state or territory child protection agency to be informed of the concern and take timely investigative action; and the relevant state or territory child protection agency to seek care orders if need be.

The worst outcome for the child is one in which protective action is not taken when required. This may arise where, for example, a judicial officer under the Family Law Act determines on the evidence that there are safety concerns in relation to the child, and neither parent is a viable carer. In that instance, the judge may determine that it is not in the child’s best interests to make a parenting order in favour of either parent. That leaves the problem of who should have parental responsibility for that child, especially where a child protection agency, having been previously notified of the safety concern, decides not to intervene in the parenting proceedings. One option may be to empower a family court to join parties to parenting proceedings where the parents are found not to be viable carers for a child.

Child protection agencies may also be dissuaded from taking protective action in a federal family court because, as parties, they become liable to costs orders.

The Commissions’ preliminary view is that the Australian Government should encourage the development of protocols and memorandums of understanding (MOUs) between federal family courts and child protection agencies that deal with the following issues:

• the election by a child protection agency to commence proceedings in a federal family court or a state or territory court;
• a process for dealing consistently with making and responding to orders for s 69ZW reports from child protection agencies;
• subpoenas addressed to child protection agencies; and
• a process which would permit a court to invite a child protection agency to consent to an order being made which allocates parental responsibility in its favour, in circumstances where the court determines that no order should be made in favour of either parent, or grandparent, in the absence of being required to become a party.

Conferring parental responsibility on a child protection agency

What happens if the child protection agency declines to intervene? Can a family court confer parental responsibility on the relevant child welfare authority, in the absence of intervention in the proceedings? These questions arose in Ray v Males,^[14] in which it was alleged that neither parent was being protective of the child and that both parents’ households presented a risk to the child. Benjamin J issued a request for intervention under s 91B, but this was declined. Benjamin J held that parental responsibility should vest in the child welfare agency, notwithstanding that it had declined to intervene and be joined as a party. This decision is currently being appealed.

Difficulties faced by federal family courts in obtaining sufficient information from state and territory agencies to inform their decision making is a matter of concern. For example, a response from an agency indicating that the matter was investigated and found not to be substantiated does at least provide some evaluation of the allegation, even if there is little detail. A response which states that no further action was required is filled with ambiguity, for it may indicate nothing more than a conclusion that the matter could be resolved by orders made under the Family Law Act in favour of a viable carer. To appropriately take into account child protection concerns in making decisions about the allocation of parental responsibility for children, family courts require all relevant information. The family courts do not have an investigative arm and must rely on the information provided by the parties and any information obtained from child protection agencies.

The Commissions seek submissions about the role that child protection agencies should play in family law proceedings and, in particular, whether family courts should have additional powers to require their intervention. The Commissions are also interested to hear about any amendments necessary to the Family Law Act in consequence—for example, whether the Act should be amended to provide that a family court may, upon finding that none of the parties to the proceedings is a viable carer, on its own motion join a child protection agency or some other person (such as a grandparent) as a party to proceedings.

Enforcement of child protection orders in family law courts

One mechanism for bridging the gap between the child protection and family law systems is ss 70C and 70D of the Family Law Act for the registration of ‘state child orders’—orders dealing with matters concerning residence and contact. Section 70E provides that once an order is registered in a court, it has the same force and effect as if it were an order made by that court. The effect of the registration is to invoke the enforcement mechanisms of the Family Law Act.

The Chisholm Review suggested—in relation to s 67ZK of the Family Law Act—that, even where a child protection order is registered, family courts may make orders in relation to children in the care of child protection authorities only if the state child welfare officer has given written consent to the institution or continuation of the proceedings. The Review noted that there may be an absence of delegated power to provide the necessary consent as part of the registration process.^[15]

The Commissions are interested in hearing whether the registration of relevant children’s court orders is a useful strategy that enhances the safety of children, and the circumstances in which child protection agencies would consider its use.

As the giving of consent by a child welfare officer requires specific written authority, if there is no delegated power then the consent required by s 67ZK may not effectively be given with the registration. The Commissions are interested in hearing how the interaction of these provisions operates in practice.

The responsibility to investigate allegations of child maltreatment—where its level of seriousness accords with the relevant statutory intervention threshold—lies principally with child protection agencies or the criminal justice system. It is easy to lose sight of this starting point because of differences between the way federal family courts and child protection agencies receive and assess allegations in the ‘protection’ area. Federal family courts need to play a more active role in engaging and assisting child protection agencies to understand how child protection concerns arise in family law proceedings.

This section reveals some serious deficiencies in the system of protection that are directly relevant to the Terms of Reference. The Commissions have formed the preliminary view that to protect children in both jurisdictions, judicial officers exercising family law jurisdiction should be empowered to provide material filed and findings made to the relevant agency where there are child protection concerns, to assist the relevant agency to understand those concerns, and to encourage them to take appropriate action.

The Commissions are interested in hearing how, in practice, information exchange can best be facilitated between family courts and child protection agencies.