Problems associated with the jurisdictional arrangements

Inappropriate choice of forum

15.7 The difficulties that can arise in determining the most appropriate forum for the hearing of a matter are best illustrated by a fairly typical example.[24] A State or Territory family services department commenced proceedings in the children’s court in relation to a nine year old girl whose mother suffered from an intermittent psychiatric illness at a time when the mother was in a psychotic state and unable to care for the child. The mother accepted treatment, her condition stabilised and the child was returned to her mother under a supervision order. In the meantime, the father, who had not had consistent contact with the child, approached the family services department and the children’s court either to have his daughter live with him or to have contact with her.

15.8 The decision as to the most suitable court to adjudicate on these issues depends in part on the State or Territory in which they arose. Care and protection legislation in some jurisdictions does not provide for contact orders to be made.[25] When a children’s court order has been made as in this example, in almost all States and Territories, the Family Court is prevented from making an order to take effect during the life of the care and protection order.[26] If the father were to wait until the supervision order expires to take action privately in the Family Court, that court could conclude that neither parent is suitable and that there are real care and protection concerns. However, the Family Court is generally unable to make care and protection orders. It is able to invite the family services department to intervene in cases but co-operation is not always forthcoming from the department.[27]

15.9 Other considerations in determining the most appropriate court to deal with these issues relate to the lengths of delays in each jurisdiction and the costs of litigation in each.

15.10 These factors make it difficult to obtain suitable orders from one court that both address care and protection concerns and ensure appropriate orders to implement family arrangements. The inability of a court to consider both family law and care and protection issues in the one proceeding where they are relevant may mean that an acceptable long-term solution is overlooked or not available.

Tandem or serial proceedings

15.11 Because care and protection and family law matters are heard in different jurisdictions, proceedings in a State or Territory children’s court may run in tandem with or follow Family Court proceedings concerning the same child and essentially the same allegations.[28] A submission to the Inquiry asserted

…there remains no clear understanding of which jurisdiction takes precedence and that consequently, difficulties occur in dealing with matters in an expedient manner and in the best interests of the child.[29]

15.12 For example, a recent contested custody matter in relation to two siblings was listed for hearing in a rural registry of the Family Court on the day before a care and protection application was due to be heard in the magistrates court in relation to one of the children. Committal proceedings for criminal charges against the alleged abusing parent were listed for the same day as the care and protection proceedings at the magistrates court. There were numerous other appearances in relation to these matters during the course of the three proceedings and the Family Court appeal.[30] Anecdotal evidence indicates that these circumstances are not unusual. When it heard the appeal the Full Family Court did not comment adversely on the arrangements.

15.13 Generally no court may make orders under the Family Law Act to take effect during the life of a care and protection order.[31] This may cause other problems in some cases and require later litigation. For example it may preclude property being settled on a child while under a supervision order of the care and protection jurisdiction or it may prevent a representative being appointed for a child during Family Court proceedings on an application for an order to take effect after the expiration of the care and protection order.[32]

The low priority given to Family Court notifications

15.14 The relationship between the different State and Territory family services departments and the Family Court varies around the country and different practices exist. Family Court officers are required to notify the family services department whenever they suspect a child has been abused or is at risk of being abused.[33] Where a party to proceedings makes an allegation of child abuse during the course of those proceedings, the registrar of the Family Court is required to notify the family services department.[34] Departments are under no obligation to investigate allegations of abuse.[35] When they do, they may not give priority to investigation of Family Court notifications perhaps because of a perception that allegations are often fabricated in the Family Court. While evidence indicates that child abuse allegations originating in the Family Court are no more likely to be fabricated than other allegations notified to family services departments,[36]

…a common view is that the allegations are merely part of a parental war. “Mud slinging” is the term used widely to describe allegations within Family Court disputes…[37]

Another submission noted

[i]f a family law matter is in train or planned, child welfare investigators may be less willing than normal to intervene. This may occur because of the myth that exists that numerous false accusations occur in Family Law cases.[38]

15.15 The Family Court child abuse study found problems with the relationship between the family services departments it studied and the Family Court, in the investigations conducted by the departments and in the report back to the court. Reports from the relevant family services department ‘…permit only a cryptic response to the Court’.[39] In 77.6% of the cases studied, no information was provided to the Family Court in response to the notification.[40] Some investigations conducted by the departments were seriously delayed, with the average investigation taking 42 days and the longest taking 180 days.[41] Where reports are provided to the Family Court, the Family Court child abuse study shows they are given considerable weight by the court. It indicates that reports are decisive or influential in 57% of cases.[42]

15.16 The study also indicated that ‘…child abuse cases spend a long time in the Family Court’.[43] They took on average 17.5 months from the time an abuse allegation was made until resolution, ‘…but the average length increased as the child’s age decreased. A number of cases stayed in the Court until the child took control themselves…’[44]

15.17 The lack of co-ordination between jurisdictions may often result in duplication between proceedings, delays in deciding a child’s future, the possibility of repeat interviews for the child and a potential increase in the risk of abuse or the creation of situations of damaging uncertainty for the child. All of these were mentioned as relevant contributors to systems abuse in a study of the problem in the NSW care and protection system.[45]

Geographical limitations on care and protection orders

15.18 At present, the State based system of care and protection may lead to litigation in courts in more than one State or Territory or leave the child at risk of continuing abuse. Parents are able to move interstate to avoid proceedings or to escape orders. The Victorian Minister for Youth and Community Services has stated that this ‘…causes difficulties for the State responsible for supervising the order to exercise its obligations and may jeopardise the safety and welfare of the child’.[46] State and Territory governments are presently seeking to overcome some of these problems.[47]

15.19 A submission to the Inquiry pointed out that State and Territory boundaries do not reflect the tribal and family geographies of Indigenous people.[48] This makes the Aboriginal Child Placement Principle more difficult to operate in practice particularly for Indigenous families living in border areas.[49] Indigenous people are greatly over-represented in care and protection systems nationally and this is a significant issue for them.[50]

[24] This example is based on a case study discussed at Jurisdictional Responsibilities for Children — Identifying the Options Workshop Monash City Premises Melbourne 23 July 1997.

[25] See para 17.61.

[26] Family Law Act s 69ZK. See also s 69ZF and para 15.5. cf Children and Young Persons Act 1989 (Vic) s 114 which allows, by consent, a Family Court order to replace a permanent care order.

[27] See paras 15.14-17.

[28] See eg Re Karen and Rita (1995) 19 Fam LR 528, 556. See also Qld Law Society IP Submission 190.

[29] Law Institute of Vic Family Law Section IP Submission 173.

[30] In the matter of KMF and CJMcP (unreported) Family Court of Australia Sydney 2 May 1995 per Lindenmayer, Finn & Joske JJ.

[31] Family Law Act s 69ZK(1).

[32] See F and M1 & M2 (1994) FLC ¶92–493, 81,125–126.

[33] Family Law Act s 67ZA. Officers may also report suspected ill-treatment of or psychological harm to a child: s 67ZA(3).

[34] Family Law Act s 67Z.

[35] A notification as defined by the Family Court may not be accepted by the relevant dept as a notification for the purposes of its legislation although this varies from jurisdiction to jurisdiction: see para 17.36 for a discussion of investigation processes.

[36] For a discussion of the debate and recent research see M Hume ‘Study of child sexual abuse allegations within the Family Court of Australia’ in Enhancing Access To Justice: Second National Conference Papers Family Court of Australia Sydney 1996, 205–212. On the information available, it appears that allegations of child abuse made in the course of Family Court proceedings are no more likely to be fabricated and should be taken equally as seriously as all allegations on their merits. Preliminary findings of the Family Court child abuse study indicated that false allegations as determined by the Court ‘…were on the low side, some 8%, a figure similar to that in child abuse notifications to child protection agencies…’: T Brown et al Monash University IP Submission 47. See also 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 Melbourne 1997, 9.

A study of 1991–92 cases in the Adelaide registry found that ‘…the rate of unsubstantiated allegations of child abuse made within the context of Family Court proceedings is not significantly higher than the rate of unsubstantiated allegations of child sexual abuse within the normal population’: M Hume ‘Study of child sexual abuse allegations within the Family Court of Australia’ in Enhancing Access to Justice: Second National Conference Papers Family Court of Australia Sydney 1996, 210. See also Education Centre Against Violence DRP Submission 43 which pointed out that children are more likely to lie to cover up abuse than to make false allegations. See paras 2.60-64 for statistics about abuse and neglect notifications to family services depts. In the US context see K C Faller ‘Possible explanations for child sexual abuse allegations in divorce’ (1991) 61 American Journal of Orthopsychiatry 86. This study found that false allegations accounted for between 15–25% of allegations.

[37] T Brown et al ‘Problems and solutions in the management of child abuse allegations in custody and access disputes in the Family Court of Australia’ Paper Second World Congress on Family Law and the Rights of Children and Youth San Francisco June 1997, 13.

[38] Australian Association of Social Workers IP Submission 207.See also Kreative Kids DRP Submission 35 which noted that this myth ‘…results in allegations being minimised, going unreported or not being investigated’.

[39] T Brown et al ‘Problems and solutions in the management of child abuse allegations in custody and access disputes in the Family Court of Australia’ Paper Second World Congress on Family Law and the Rights of Children and Youth San Francisco June 1997, 5.

[40] ibid. However, the dept may take some action in relation to the notification that does not involve court proceedings: see 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 FutureAustralian Association of Family Lawyers and Conciliators Melbourne 1997, 13.

[41] T Brown et al ‘Problems and solutions in the management of child abuse allegations in custody and access disputes in the Family Court of Australia’ Paper Second World Congress on Family Law and the Rights of Children and Youth San Francisco June 1997, 5.

[42] 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 FutureAustralian Association of Family Lawyers and Conciliators Melbourne 1997, 15. Family reports prepared by the Family Court Counselling Service were followed in 76% of cases: 15.

[43] T Brown et al Monash University IP Submission 47.

[44] T Brown et al ‘Problems and solutions in the management of child abuse allegations in custody and access disputes in the Family Court of Australia’ Paper Second World Congress on Family Law and the Rights of Children and Youth San Francisco June 1997, 6.

[45] J Cashmore, R Dolby & D Brennan Systems Abuse: Problems and Solutions NSW Child Protection Council Sydney 1994. See paras 17.6-14 for a discussion of systems abuse.

[46] Breaking down the borders’ Herald Sun (first edition) 25 November 1996, 40.

[47] See para 15.5.

[48] Secretariat of National Aboriginal & Islander Child Care IP Submission 56.

[49] See paras 17.93-94 for a discussion of the Principle.

[50] See paras 2.63-64 for statistics on Indigenous over-representation in care and protection systems.