Consequential reforms of the system

15.49 Some submissions disagreed that any amendment to the jurisdictional arrangements is necessary, agreeing rather with the assertion that ‘[w]hat needs to be resolved once and for all is for the welfare authorities to enter into appropriate work practices to stop their forum shopping’.[116] There is room for improvement of the current arrangements.

15.50 Generalist magistrates are able to exercise federal family law jurisdiction under section 69J of the Family Law Act.[117] Generally, children’s court magistrates are not able to do so. In principle, there should be no procedural reason why children’s courts magistrates in each State or Territory should not be able to exercise federal family law jurisdiction. This would be necessary to implement the cross-vesting proposals but it may also assist in the administration of the current arrangements if specialist children’s court magistrates were able to exercise federal family law jurisdiction. Where necessary this would require children’s courts to be proclaimed as courts of summary jurisdiction for the purposes of the Judiciary Act 1903 (Cth) allowing them to be invested with federal family jurisdiction. For those children’s courts that have district court status, alternative arrangements should be developed to ensure they are able to exercise federal family jurisdiction where appropriate.

15.51 Continuing confusion over the extent of the welfare and parens patriae jurisdictions should be addressed.[118] Much of this confusion was removed by the High Court decision in P and P.[119] However, it did not address the issue of the extent of the statutory welfare jurisdiction over ex-nuptial children and it appears that this is excluded from the Family Court’s jurisdiction. The statutory welfare jurisdiction of the Family Court should extend to ex-nuptial children.[120]

15.52 Other reforms would assist in streamlining the current jurisdictional arrangements. In particular continuing development and training are required in relation to protocols. Priority should also be given to data collection and analysis.

Recommendation 122 Children’s courts should be invested with federal family law jurisdiction under s 69J of the Family Law Act.

Implementation.The Attorney-General through SCAG should seek the agreement of the States and Territories to this proposal.

Recommendation 123 Whether or not the proposed extended cross-vesting scheme is pursued, the States should refer power to the Commonwealth to legislate for the welfare of ex-nuptial children, excluding matters falling within the care and protection jurisdiction of the States.

Implementation. The Attorney-General through SCAG should seek the agreement of the States and Territories to this referral of power.

Recommendation 124 Protocols for inter-agency co-operation between the Family Court, State and Territory family services departments and the relevant children’s courts should be developed where they do not apply already. All protocols should be reviewed regularly to ensure that they enhance co-operation between the agencies concerned and their professionalism, promote the best interests of the child and continue to be relevant to workers in the field. In particular, protocols should ensure that action taken on notifications from the Family Court are reported fully. Family Court, children’s and magistrate courts and family services department staff should receive regular training in the protocols. Protocols should be widely published, particularly when they are updated.

Implementation. The protocols committees established in each jurisdiction should pursue the development and regular review of protocols and associated training measures.

Recommendation 125 The Family Court should collect, analyse and publish data concerning child abuse notifications made by the court to State or Territory family services departments and about the results of these notifications. In particular, all allegations of abuse should be recorded along with information about the type of proceedings in which the allegations were raised and the result of the Family Court matter and of any other departmental action including counselling, the provision of reports or the initiation of care and protection proceedings.

Implementation. The Family Court should establish an appropriate database for the collection of these statistics and introduce appropriate procedures and protocols to allow their collection. The statistics should be provided to the Australian Institute of Health and Welfare for publication along with national care and protection statistics.

Recommendation 126 Notifications of care and protection issues arising in family law proceedings should be tracked through the Family Court, family services departments and children’s courts and reports provided to the Family Court on the results of investigations.

Implementation. In conjunction with the State and Territory children’s courts and family services departments, the Family Court should develop mechanisms to ensure that these notifications are appropriately tracked and reported back to the Family Court.

[116] National Legal Aid DRP Submission 58.

[117] This allows courts of summary jurisdiction to exercise federal family law jurisdiction. Courts of summary jurisdiction cannot exercise jurisdiction in relation to parenting orders without the consent of the parties, however, and may not exercise jurisdiction under Family Law Act s 60G. Courts of summary jurisdiction have been described as those courts that ‘…have exclusive power to hear and determine complaints of simple offences — that is, statutory offences which are expressed to be triable summarily or which are not expressed to be triable on indictment’: J Crawford Australian Courts of Law 3rd ed Oxford University Press Melbourne 1993, 94. The provision arises from the Constitution s 77 (iii) and the Judiciary Act 1903 (Cth) s 39. See J Crawford Australian Courts of Law 3rd edition Oxford University Press Melbourne 1993, 38 for a discussion of the arrangement.

[118] For a discussion of the history of the arrangements concerning, and of the extent of, the parens patriae and welfare jurisdictions see J Seymour ‘Parens patriae and wardship powers: Their nature and origins’ (1994) 14 Oxford Journal of Legal Studies 159; J Seymour ‘The role of the Family Court of Australia in child welfare matters’ (1992) 21 Federal Law Review 1.

[119] (1994) 120 ALR 545.

[120] See also Family Law Council Comments on the Report of the Joint Select Committee on the Operation and Interpretation of the Family Law Act Family Law Council AGPS Canberra 1993, 33.