An extended cross-vesting scheme: an option for reform


15.26 The above problems all centre on co-ordination between the jurisdictions and the relative responsibilities of the States and Territories and the Commonwealth. The question this poses for the Inquiry is how to re-orient responsibilities and enhance co-ordination so that care and protection and family law disputes are resolved more rationally, expeditiously, fairly and with least disruption to the lives of the children involved. There are a number of options to assist the rationalisation of the responsibilities of the various courts.

15.27 DRP 3 proposed an extended cross-vesting scheme to deal with these problems.[62] This proposal is further discussed below. Also discussed is an alternative scheme that would see the transfer of power over care and protection matters to the Commonwealth by the States and Territories. A third option would be to refine the current arrangements further. These options are outlined from para 15.42.

15.28 While the extension of the cross-vesting scheme remains the preferred option, a pending High Court matter challenging the validity of cross-vesting schemes requires that other options be explored.[63] The High Court challenge is based on the argument that the Constitution prohibits the vesting of judicial power by State legislation on federal courts. In the judgment appealed from, the Federal Court held that

[n]either Ch III of the Commonwealth Constitution nor s 51(xxxvii), permitting the Commonwealth to legislate with respect to matters referred to it by the parliaments of the States, prohibits or limits the conferral of State judicial power on federal courts although Ch III is exhaustive in relation to the definition of federal jurisdiction that may be vested by the Commonwealth Parliament in a federal court.[64]

In the event of the failure of the cross-vesting scheme, one of the alternatives proposed below should be introduced to ensure that the one court has the jurisdiction to deal with the range of related issues presented in care and protection and family law matters.

An extended cross-vesting scheme

15.29 Cross-vesting legislation has been used in many cases to

…end the barren jurisdictional disputes which have increasingly bedeviled litigation in Australia…and to ensure that no proceedings failed for want of jurisdiction.[65]

15.30 The cross-vesting arrangements have been hailed as a significant development that has assisted in overcoming the constitutional difficulties of the family law jurisdiction.[66] Certainly, they have assisted in resolving some matters in which family law and care and protection issues are inextricably bound.[67] However, in children’s cases the current cross-vesting arrangements have not resolved all the jurisdictional difficulties. The cross-vesting scheme involves only superior courts of record in the States and Territories, whereas children’s care and protection matters are dealt with at first instance in the lower courts. The Family Court can determine care and protection matters under the relevant State legislation only if an application is made to a State or Territory Supreme Court[68] and is then transferred to the Family Court.[69] The Supreme Courts may also transfer proceedings of their own motion.[70]

15.31 Under a reformed scheme, the Family Court would be empowered to deal with care and protection issues under State or Territory legislation whenever they are relevant to matters already before it. State and Territory children’s courts would be empowered reciprocally to deal with relevant family law matters when considering care and protection applications. In this way, all relevant issues could be dealt with in the one forum and in the one set of proceedings. This proposal would leave legislative power for care and protection with the States and Territories but would require the enactment of additional cross-vesting legislation to provide for the transfer and receipt of relevant jurisdiction between the Family Court and the children’s courts of the States and Territories. It would also require the development of appropriate protocols and guidelines between the participating courts and departments.

15.32 The Family Law Council considered this issue in its report Child Sexual Abuse.[71] It recommended a scheme similar to that proposed here.[72] The Australian Institute of Judicial Administration (AIJA) also recommended that the cross-vesting scheme be extended at least to the level of the main civil trial courts.[73] AIJA’s discussion dealt mainly with areas of law other than family law but the principle was to apply generally. The proposal in DRP 3 received substantial support.[74] Copelen Child and Family Services submitted

…delays in determining the best interests of the child could be avoided when one court is involved rather than shifting a case between different court jurisdictions. The latter simply increases legal costs to the parents and the State.[75]

A few submissions objected to the proposal. The Children’s Interest Bureau Board submitted that ‘[t]o combine the two systems or worse to expect both systems to be able to undertake both roles simultaneously requires far greater debate and discussion’.[76]

15.33 The Family Law Council envisaged that the State and Territory children’s courts should take precedence in hearing matters that involve allegations of child sexual abuse or care and protection issues.[77] Given the need to deal with these cases expeditiously and to minimise disruption, we envisage the cross-vesting scheme operating so that the first court to acquire a matter would hear all the relevant issues under both jurisdictions. A court that has made orders in relation to a child should generally maintain carriage of that matter including later applications for rescission or variation of the original orders.[78] If rescission or variation orders could be initiated in the Family Court, that Court could receive inappropriate applications for parenting orders in relation to children under care and protection orders in an attempt to obtain a rescission along with the Family Court parenting order. The Family Court may become an inappropriate alternative forum or de-facto appeal court. As the NSW Government submitted,

[c]are and protection orders are but a part of a holistic and detailed Department of Community Services plan for the care and protection of a child. It would be unproductive and against the interests of the child to subject such a plan to a formal review (by the Family Court) where a failure or shortcoming of the plan itself was not the reason for the review.[79]

Recommendation 119 The current cross-vesting arrangements should be extended to the relevant State and Territory children’s courts and the Family Court in relation to the exercise of State and Territory care and protection and related federal family law matters. Under the cross-vesting scheme the first court to receive a matter relevant to the other jurisdiction should be able to deal with the full range of issues. The proceedings should be transferred to the other court only where considerations of justice so require or where proceedings are considered to have been instituted in the court as a result of inappropriate choice of forum. In con-sidering a transfer, the court should prefer the court which will allow the most effective, expeditious and least expensive resolution of the matter.

Implementation. The Attorney-General through SCAG should seek the agreement of States and Territories to the implementation of this scheme. The relevant legislation, protocols and procedures should be amended accordingly.

Mechanics of the scheme

15.34 The proposed scheme would minimise the risk that the parties would seek to institute proceedings in the court with the most advantageous procedures and rules of confidentiality,[80] burdens of proof and the like. The possibility of forum shopping needs some examination and court rules would need to be amended to prevent it.[81] The rules of evidence to apply also need to be determined. The current cross-vesting legislation provides that the procedures of the court in which the matter is heard apply.[82] The Evidence Act takes precedence over State or Territory rules of evidence where proceedings concern State or Territory as well as federal legislation.[83] States and Territory children’s courts are generally unconstrained by rules of evidence.[84] The less rigorous evidentiary requirements in care and protection jurisdictions may assist in the proper resolution of cases where both care and protection and family law issues are involved.[85] One submission suggested this examination should be conducted in consultation with relevant government and non-government agencies. The Inquiry agrees with this suggestion.[86]

15.35 The successful operation of the extended scheme for proceedings commenced in the Family Court would be dependent on the co-operation of State and Territory family services departments. The exercise of State and Territory care and protection jurisdiction would remain dependent on the initiation of care and protection proceedings by the relevant family services department. Parties other than the department should not be able to initiate proceedings in the Family Court under the care and protection legislation.

15.36 Officers of the Family Court and court counsellors are required to report evidence or suspicions of child abuse to the relevant family services department.[87] If a party makes an allegation of child abuse during the course of proceedings, the Registrar of the Court is required also to notify the family services department.[88] The provisions that require the notification are relatively broad and are defined to include sexual assault or sexual activity involving the child.[89] An officer of the court may, but is not required to, report to the department other forms of psychological harm to or ill-treatment of a child.[90] This conduct is not closely defined. States and Territories define abuse and neglect differently.[91] The conduct referred to in the Family Law Act may differ from the conduct which is accepted as a notification by the relevant family services department. The Inquiry considers that notifications under the proposed extended cross-vesting arrangements should more closely match the definitions of notifiable conduct under the State and Territory legislation to ensure that all relevant care and protection concerns may be dealt with in the one proceedings.[92] The NSW Government supported more closely aligning matters to be notified to the legislative definitions of child abuse.[93]

15.37 If care and protection issues were raised during the course of proceedings in the Family Court but the department decided against intervening, the Family Court should not be able to make an order requiring the involvement of the department. It would be inappropriate for a court to require a department to take responsibility for a child over the objections of that department.[94] However, the Family Court, where it had continuing concerns about the safety or welfare of the child, should be able to require the department to provide a report on the results of its investigations of the notification and the reasons for the decision not to pursue the case. The NSW Government objected to this proposal on the grounds that requiring appearances would have resource implications and divert caseworkers.[95] The Inquiry envisages this provision would be used sparingly where matters were unable to proceed without advice from the department.

15.38 At present, courts of summary jurisdiction are able to determine matters relating to children under the Family Law Act only with the consent of the parties.[96] Under the proposed extended cross-vesting scheme there would be no requirement for consent. The Family Law Council has also proposed this.[97] North Queensland Women’s Legal Service noted that giving State and Territory magistrates power to make final orders ‘…can only be a backward step…unless those magistrates have the necessary training and expertise’.[98] National Legal Aid expressed concern at this proposal.

Natural justice principles must always be accorded by Courts. Magistrates/Local Courts do not always have the capacity to handle Family Court matters, certainly not with the level of expertise consistent with judicial officers in the Family Court of Australia.[99]

15.39 The Inquiry agrees with these concerns but not with the conclusions reached. The requirement for consent, if retained, would render the extended cross-vesting scheme unworkable or at least impractical. If a party considered a forum to be inappropriate, it would be open to that party to seek to transfer the matter to another more appropriate participating court. However, we recognise that extending the cross-vesting scheme must be accompanied by action to increase the expertise of the magistracy as recommended at 130.[100]

15.40 Under the proposed scheme, Family Law Act s 69ZK, which allows orders to be made under the Act only in restricted circumstances where there is a current care and protection order, would become redundant.

15.41 The proposed scheme should not apply to certain kinds of proceedings and powers, for example those generally within the exclusive jurisdiction of superior courts such as injunctive or contempt powers.[101] It should also not extend to the statutory welfare jurisdiction of the Family Court.

Recommendation 120 The Attorney-General’s Department, in conjunction with the Family Court, State and Territory children’s courts and relevant family services departments, should examine and report on consequential amendments and practical changes required to ensure the smooth operation of the extended cross-vesting scheme. In particular, it should examine the effect on the scheme of the differences in the procedures and rules of evidence, delays, costs of proceedings and issues of confidentiality of information in each jurisdiction.

Implementation. The federal Attorney-General’s Department should seek the agreement of the relevant State and Territory agencies to this examination and to the implementation of the report. The Family Court should introduce any necessary amendments to the Family Law Rules.

Recommendation 121 The recommended extended cross-vesting scheme should operate in the following way.

  • The provisions in s 67ZA of the Family Law Act requiring or allowing notifications of child abuse concerns by officers of the Family Court should refer to the definition of child abuse proposed at recommendation 172.

  • Where care and protection concerns as defined in the relevant State or Territory legislation arise in the course of family law proceedings, the Family Court should notify the relevant family services department as at present and invite the department either to initiate care and protection proceedings under the cross-vesting arrangements or to intervene in the proceedings.

  • Where protective concerns have been notified to the relevant family services department by the Family Court, the court should have the power, where it considers that care and protection orders may be necessary, to require the relevant officer from the department to appear before it to explain the reasons for any decision not to pursue the notification and/or provide information on the result of any investigation. This provision is directed to ensure appropriate co-operation and communication between the department and the Family Court and to obviate the need for litigation of a matter which would be more appropriately dealt with informally by the department. The Family Court could adjourn a matter and seek regular reports from the department on progress of informal work with the family.

  • Section 69N of the Family Law Act should be amended to provide that, in care and protection matters heard in a State or Territory court of summary jurisdiction, including children’s courts, in which relevant Family Law Act issues arise, the State or Territory court should be able to hear the family law issues without the consent of the parties.

  • Under the recommended cross-vesting scheme section 69ZK of the Family Law Act should be repealed as it would become redundant.

  • The scheme should not extend to the cross-vesting of all family law matters, particularly the statutory welfare jurisdiction of the Family Court and those powers which in general are restricted to superior courts.

Implementation. The Attorney-General through SCAG should seek the agreement of the States and Territories to the implementation of this scheme. The relevant legislation, protocols and procedures should be amended accordingly.

[62] Draft rec 6.1.

[63] The High Court case Gould v Brown (in the capacity as liquidator of Amann Aviation Pty Ltd (in liq)) is an appeal from the reported decision of BP Australia Ltd v Amann Aviation Pty Ltd; Cortaus Ltd (in liq) v Larken Ltd and ors; Southern Steel Suppliers Pty Ltd v Favelle Favco Holdings Pty Ltd (1996) 137 ALR 447.

[64] BP Australia Ltd v Amann Aviation Pty Ltd; Cortaus Ltd (in liq) v Larken Ltd and ors; Southern Steel Suppliers Pty Ltd v Favelle Favco Holdings Pty Ltd (1996) 137 ALR 447, 447.

[65] Re Chapman and Jansen (1990) 13 Fam LR 853, 866.

[66] HA Finlay, AJ Bradbrook & RJ Bailey-Harris Family Law: Cases, Materials and Commentary 2nd ed Butterworths Sydney 1993, 94. See also GJ Moloney & S McMaster Cross-vesting of Jurisdiction: A Review of the Operation of the National Scheme AIJA Melbourne 1992, 148.

[67] One such case was Re Karen and Rita (1995) 19 Fam LR 528. While the use of the cross-vesting arrangements assisted the resolution of this very difficult matter, there were protracted delays resulting from the jurisdictional difficulties and problems with information sharing and co-operation between jurisdictions.

[68] Under s 8 of the cross-vesting legislationof the States. The Family Law Rules O 31A provide that an application must be made and filed with a supporting affidavit and that such applications can only be heard by a judge. The NSW Supreme Court Rules require that an application for transfer of proceedings under the cross-vesting legislation must be made by way of motion after an application has been filed.

[69] Except in Tas and NSW where matters can be dealt with the written consent of the Minister or his or her delegate: see paras 15.5, 15.47.

[70] The number of matters transferred under the scheme is very small: GJ Moloney and S McMaster Cross- vesting of Jurisdiction: A Review of the Operation of the National Scheme AIJA Melbourne 1992, appendix 1, tables C, D, E.

[71] AGPS Canberra 1988.

[72] id 30ff.

[73] GJ Moloney & S McMaster Cross-vesting of Jurisdiction: A Review of the Operation of the National Scheme AIJA Melbourne 1992, 120.

[74] eg Taxi Employees’ League DRP Submission 21; P Eastaugh DRP Submission 29; Kreative Kids DRP Submission 35; Copelen Child and Family Services DRP Submission 37; North Qld Women’s Legal Service DRP Submission 45; Townsville Community Legal Service DRP Submission 46; AFP DRP Submission 66.

[75] DRP Submission 37.

[76] DRP Submission 79. See also MG Hains DRP Submission 24;Law Council of Australia DRP Submission 84. The Education Centre Against Violence DRP Submission 43 noted that ‘[a]lthough multiple hearings can have an adverse effect on children, cross-vesting may not be the ideal way to proceed’. Some other submissions preferred a transfer of power to the Cth: see para 15.42.

[77] Family Law Council Child Sexual Abuse AGPS Canberra 1988, 33.

[78] It is possible that a prohibition may not work if a person takes action on care and protection concerns in the Family Court under the Family Court’s statutory welfare jurisdiction or the cross-vested parens patriae jurisdictions of State and Territory courts. For a discussion of the parens patriae jurisdiction see J Seymour ‘Parens patriae and wardship powers: Their nature and origins'(1994) 14 Oxford Journal of Legal Studies 159.

[79] DRP Submission 86.

[80] Some jurisdictions have confidentiality provisions that are interpreted narrowly and that would have implications for such a cross-vesting scheme: see eg Re Z (1997) 20 Fam LR 651.

[81] See HA Finlay, AJ Bradbrook & RJ Bailey-Harris Family Law: Cases, Materials & Commentary 2nd ed Butterworths Sydney 1993, 87.

[82] s 11. See P Nygh Conflict of Laws in Australia 6th ed Butterworths Sydney 1995, 92–96.

[83] s 8(1).

[84] See paras 17.59-60.

[85] It may also be worth considering whether domestic violence legislation should be included in matters to be cross-vested in this scheme. This remains an area of difficulty for the appropriate resolution of family law matters. The differences between the approaches in State and Territory domestic violence legislation and the Family Law Act s 68K also should be explored: see North Qld Women’s Legal Service DRP Submission 45. However the Inquiry has not considered this matter in detail as it is beyond the terms of reference.

[86] Kreative Kids DRP Submission 35.

[87] Family Law Act s 67ZA.

[88] Family Law Act s 67Z.

[89] Family Law Act s 60D (1).

[90] Family Law Act s 67ZA(3).

[91] See paras 17.37-38.

[92] The Inquiry recommends that consistent definitions of abuse and neglect be developed and legislated in all jurisdictions under the national standards for care and protection: see rec 172.

[93] DRP Submission 86.

[94] This is a different situation from a court making orders other than those applied for by a dept as suggested at rec 172 because in these cases the dept would have decided some action was necessary in the case.

[95] DRP Submission 86.

[96] Family Law Act s 69N(2). See paras 15.61-70 for a discussion of the magistracy in family law.

[97] Family Law Council Child Sexual Abuse AGPS Canberra 1988, 35.

[98] DRP Submission 45.

[99] DRP Submission 58.

[100] The development of expertise requires a substantial degree of consistency in care and protection legislation. As noted in one submission, ‘[w]ithout overarching Federal legislation…maintenance of consistency could not be ensured’: Burnside IP Submission 214. See also paras 17.61-64, rec 172. The scheme will also require the judiciary and magistracy to become more proactive in their adjudication of matters: see rec 173.

[101] For a discussion of the inherent power of superior courts see J Crawford Australian Courts of Law 3rd ed Oxford University Press Melbourne 1993, 131.