Jurisdictional confusion

15.1 Jurisdiction over matters relating to children, including care and protection and family law, is divided between the States and Territories and the Commonwealth. The Commonwealth has family law jurisdiction in relation to private disputes between individuals, while the State and Territory care and protection jurisdictions concern public law issues involving intervention of the state. Yet the two types of proceedings, as far as children are concerned, are often related, both being aimed at determining their most appropriate living arrange-ments. Each jurisdiction deals with allegations of child abuse. These cases form a significant proportion of children’s court work. A study tracking 200 Family Court matters in which child abuse allegations had been made found that, at the pre-hearing conference, half of all children’s matters in the list involved allegations of child abuse.[1] The study concluded that the Family Court and State care and protection services have ‘…reached a position not only of mandated co-ordination, but of mutual resource dependence as well …’[2]

15.2 Notwithstanding this dependency, the jurisdictional base for family law and care and protection cases presents a particularly complicated maze and ‘…the task of working out a coherent legislative approach is bedeviled by the awkward division of legislative responsibility between the Commonwealth and the States …’[3] A 1984 report noted

[t]he fragmentation of the law causes considerable practical difficulties. There are areas of overlap so that it is not clear in some circumstances which law applies or which court has jurisdiction. There are anomalous inconsistencies and gaps.[4]

The jurisdictional divisions have resulted in judicial decision-making being shared between federal Family Court judges and judicial registrars and State and Territory judicial officers. These State and Territory officers may be specialist children’s court magistrates or judges exercising State or Territory care and protection jurisdiction or State and Territory generalist magistrates exercising both federal family law and State or Territory care and protection jurisdictions. The lack of co-ordination between the family law and care and protection jurisdictions and between the care and protection systems of each State and Territory was raised as a source of serious concern during the Inquiry. There was wide agreement that the current jurisdictional arrangements fail to serve the interests of many children in the family law and care and protection systems and may add to their disadvantage and distress. Chief Justice Nicholson of the Family Court has noted

[t]he problem really lies in the fact that family law in general is the province of the Commonwealth Government and child welfare, the province of the states and territories. It is more than time that this issue was addressed as it has been in countries like the United Kingdom and New Zealand where there is an integrated jurisdiction that enables courts to consider all welfare issues in relation to children. The situation in this country leaves open the very real possibility that some children’s welfare will be jeopardised.[5]

15.3 Federal systems generate differences. This particular federal arrangement has inhibited the development of an integrated, expert family court system adjudicating on both private and public family law matters. Many of those with whom the Inquiry consulted argued for this situation to be remedied. This chapter explores the limits of federal power to legislate about children in family matters, discusses the difficulties associated with the division of jurisdiction between the Commonwealth and the States and Territories and suggests models for reform.

The jurisdictional division

15.4 The division of responsibility between the States and Territories and the Commonwealth arises from the constitutional limits on the Commonwealth’s power to legislate. The States retain power to legislate in nearly all areas on which the Commonwealth is empowered to legislate under the Australian Constitution. The Constitution specifies, however, that where both the Commonwealth and the States and Territories have legislative power, federal legislation will prevail to the extent of any inconsistency.[6] In relation to the family law and care and protection jurisdictions, the Constitution specifies that the Commonwealth may legislate in the areas of


(xxii) Divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants…[7]

The resulting demarcation has been awkward. It has restricted federal focus to children of a marriage and to issues of private family law rather than public care and protection. These limitations have been a source of difficulty at least since the Family Law Act came into effect in 1976. Since then, substantial steps have been taken to overcome some of the difficulties but the jurisdictional division remains.

Attempts to deal with the problems

15.5 The Commonwealth and the States and Territories and the courts have recognised some of the problems with the jurisdictional arrangements and have attempted to rectify them as follows.

    • The Family Court had adopted broad judicial interpretations of such terms as ‘custody’, ‘guardianship’ and ‘child of a marriage’.[8]

    • The Family Court, children’s courts and State and Territory family services departments have introduced protocols for dealing with care and protection matters.

    • The Family Court was given a statutory welfare jurisdiction in relation to children of a marriage in 1983.[9]

    • The Commonwealth and all States and Territories introduced cross-vesting legislation.[10] This applies to the Federal and Family Courts and each of the Supreme Courts of the States and Territories. Any participating court may now exercise the jurisdiction of another participating court wherever it becomes relevant and is able to transfer a matter to another participating court where appropriate.[11] The scheme has indirect coverage of courts of the States and Territories in addition to Supreme Courts, in that the cross-vesting legislation allows matters to be removed from a lower court to the Supreme Court of the relevant State or Territory and from there to any other more appropriate participating court in the usual manner.[12]

    • All States except WA have transferred to the Family Court legislative power in relation to ‘custody and guardianship of, and access to ‘ ex-nuptial children.[13] This specifically excluded a reference of powers that would affect the operation of the care and protection legislation of the States and Territories.[14]

    • Legislative arrangements in some jurisdictions allow an order to be made under the Family Law Act while a child is under a care and protection order with the consent of the relevant State Minister.[15] These legislative amendments reflect a policy agreement reached in SCAG to that effect.[16]

    • The States and Territories and the Commonwealth have agreed to consider mechanisms to increase the portability of care and protection orders interstate. A discussion paper was prepared for the Standing Committee of Community Services and Income Security Administrators in September 1996 on the subject.[17] The paper recommended that legislation be introduced to facilitate transfer of orders and applications interstate.[18] While it did not recommend that the legislation introduce standard orders, terminology or procedures nationally[19] or allow for mutual recognition of interstate orders,[20] the discussion paper encouraged the States and Territories to move towards a more consistent and uniform approach in these areas.[21] It also recommended that protocols be drafted to facilitate the transfer of orders.[22] The discussion paper did not recommend national care and protection legislation because of the lack of consensus on the issue.[23]

15.6 While each of these steps has been useful, they have failed collectively to resolve the difficulties with the complex jurisdictional arrangements that may harm many children each year. Some of these problems are discussed in the following sections.

[1] T Brown et al ‘Mandated co-ordination: Aspects of the interface between the Family Court of Australia and the Victorian State Child Protection Service’ Paper Children at Risk: Now and in the Future Australian Association of Family Lawyers and Conciliators Seminar Melbourne April 1997, 4. In this chapter, this study will be referred to as the Family Court child abuse study.

[2] id 2.

[3] O Jessep & R Chisholm ‘Children, the Constitution and the Family Court’ (1985) 8 University of NSW Law Journal 152, 182.

[4] Child Welfare Practice and Legislation Review Report: Equity and Social Justice for Children, Families and Communities Vic Government Melbourne 1984, 329.

[5] Re Karen and Rita (1995) 19 Fam LR 528, 556.

[6] Constitution s 109. See PH Lane An Introduction to the Australian Constitutions 6th ed Law Book Company Sydney 1994, 83. There are also areas of concurrent power: see PH Lane An Introduction to the Australian Constitutions 6th ed Law Book Company Sydney 1994, 83.

[7] s 51 (xxi), (xxii).

[8] J Seymour ‘The role of the Family Court of Australia in child welfare matters’ (1992) 21 Federal Law Review 1, 8–10.

[9] ibid. Secretary Department of Health and Community Services v JMB and SMB (1992) 15 Fam LR 392 (Marion’s case) also deals with this matter in detail.

[10] All entitled the Jurisdiction of Courts (Cross-vesting) Act 1987 except the Jurisdiction of Courts (Cross-vesting) Act 1993(ACT) (the cross-vesting legislation). One of the effects of this legislation in relation to family law appears to be that the Family Court may exercise the residual parens patriae jurisdiction of State and Territory Supreme Courts for ex-nuptial children by assuming that jurisdiction under the cross-vesting scheme: J Seymour ‘The role of the Family Court of Australia in child welfare matters’ (1992) 21 Federal Law Review 1, 27. A current High Court challenge to this scheme is discussed at para 15.28.

[11] s 5 of the cross-vesting legislation.

[12] s 8 of the cross-vesting legislation.

[13] Commonwealth Powers (Family Law — Children) Act 1986 (NSW); Commonwealth Powers (Family Law — Children) Act 1986 (Vic); Commonwealth Powers (Family Law — Children) Act 1986 (SA); Commonwealth Powers (Family Law) Act 1987 (Tas); Commonwealth Powers (Family Law — Children) Act 1990 (Qld). (the Commonwealth powers legislation). The Cth passed legislation in the form of the Family Law Amendment Act 1987 (Cth).

[14] See s 3(2) of the State and Territory Commonwealth powers legislation.

[15] Tas and NSW have introduced the Commonwealth Powers (Family Law) Amendment Act 1994 (Tas)and the Commonwealth Powers (Family Law — Children) Amendment Act 1996 (NSW) respectively. That legislation adds s 3(2A) to the primary legislation which allows an order under the Family Law Act to be made while a child is under a care and protection order if the Minister of the Crown responsible for the administration of the relevant care and protection legislation or someone authorised on his or her behalf consents in writing. The Family Law Act s 69ZK(1)(b) accepts that the reference of power may be brought into force by way of proclamation pursuant to s 69ZF of the Act. See also Children and Young Persons Act 1989 (Vic) ss 103, 114.

[16] Attorney-General’s Dept DRP Submission 52. See para 15.47.

[17] Vic Dept of Human Services Discussion Paper: Resolving Cross-jurisdictional Problems in Child Protection Dept of Human Services Melbourne 1996.

[18] id 10.

[19] id 9.

[20] id 8.

[21] id 20.

[22] id 19.

[23] id 9.