Can we talk about ‘family matters’?
15.20 The division of jurisdiction for family matters between the Commonwealth and the States and Territories reflects the division between the private and public spheres of law. The value of this divide is questionable and was frequently debated in evidence to the Inquiry. Some submissions to the Inquiry reiterated the following view.
It would be unfortunate if the Family Court were to take over a role for which it has not been designed…It would not be appropriate for a Court which basically adjud-icates between individual citizens also to take over the executive role of the State.
Others expressed the opinion that ‘…one court system dealing with these matters is better than two’. The Family Court has noted
…while it is true that the area of child protection and the normal area of jurisdiction of the Family Court of Australia emanate from different sources and from a different historical background, it is not possible to compartmentalise the two jurisdictions and indeed they overlap in the sense that both are concerned with the welfare of children…[T]he considerations to be brought to bear in the exercise of both jurisdictions are often the same or similar, and are particularly so in determining whether a child has been, or is likely to be subject to an unacceptable risk of abuse.
15.21 The primary issue, however, is the ability of any one court hearing a matter to decide the range of relevant issues presented to it. Legal processes themselves should not exacerbate the disruption to the lives of families and children involved in litigation for procedural and jurisdictional convenience. If the interests of children are to be paramount then all remedies and solutions could be considered in the one forum.
How many children are affected by the jurisdictional arrangements?
15.22 The number of children adversely affected by Australia’s jurisdictional arrangements is difficult to determine. The number of notifications of child abuse made by the Family Court or by a party to the proceedings through the court to the relevant State or Territory family services department gives some indication. There were 1 518 notifications made by court counselling staff of the Family Court of Australia in the financial year to July 1996.
15.23 One suggestion to the Inquiry was that a ‘rule of thumb’ indicator may be the number of child’s representative appointments made by the Family Court because in a significant proportion of cases where a child’s representative is appointed there is some welfare issue relating to the child. This may be the case even where a risk or allegation of child abuse is not the court’s stated reason for the appointment. There were 4 528 appointments of child’s representatives by the Family Court of Australia between 1 July 1995 and 30 April 1996.
15.24 The recent Family Court child abuse study found that matters in the Family Court that involved allegations of child abuse constituted 5% of all children’s matters. However, these cases stayed in the Court and increased as a proportion of all cases in the system as other matters were resolved or finalised. The researchers concluded that child abuse cases have become part of the core business of the Family Court.
…the Family Court is being used as a frontline institution to resolve family violence, without much understanding of the fact that this is the current nature of the Court’s work in children’s matters.
15.25 In addition, within the State-based system of care and protection it is difficult to ascertain how many children are affected by the geographical limits of the care and protection systems. Between 200 and 250 children under a care order may be living outside the jurisdiction in which the order was made. Given the increasing mobility of the Australian population, these difficulties may become more common.
 Law Society of NSW IP Submission 209. See also A Wyndam & S Parker, Woden Valley HospitalChild at Risk Assessment Unit Public Hearing Submission Canberra 7 May 1996. See also paras 15.32, 15.43.
 North Qld Women’s Legal Service DRP Submission 45. See paras 15.32, 15.42 for a discussion of support for the transfer of jurisdiction for dealing with care and protection matter to the Family Court.
 Re Z (1997) 20 Fam LR 651, 661 per Nicholson CJ & Frederico J.
 These notifications are made under Family Law Act s 67ZA and s 67Z respectively.
 Family Court of Australia Annual Report 1995–96 Family Court of Australia Sydney 1996, 72. This number increased from 396 notifications in the previous year: Family Court of Australia Annual Report 1994–95 Family Court of Australia Sydney 1995, 80. There were also 87 notifications from the counselling staff of the Family Court of WA to the relevant dept in 1995–96: Family Court of Australia Annual Report 1995–96 Family Court of Australia Sydney 1996, 72. In addition, an unknown number of notifications were passed by the Family Court to the dept from parties. The Vic family services dept received 237 notifications from the Family Court in total in the year 1994–95: Vic Government IP Submission 213. There were 131 notifications from counselling staff to the Vic dept in the year 1994–95: Family Court of Australia Annual Report 1994–95 Family Court of Australia Sydney 1995, 72. The balance of notifications received by the dept from the court would be notifications from parties passed to the dept by the Family Court.
 D Halligan, Judicial Registrar Family Court of Australia Minutes of MeetingParamatta 1 November 1996. See also Family Court of Australia Representing the Child’s Interests in the Family Court: A Report to the Chief Justice of the Family Court of Australia Family Court of Australia Brisbane 1996, 55.
 Family Court of Australia Outcomes Report unpublished October 1996.
 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 YouthSan Francisco June 1997, 2–3. By the time of the trial, the proportion of children’s cases involving an allegation of child abuse had reduced to one third as a result of settlement at the prehearing conference.
 id 2.
 T Brown et al Monash University IP Submission 47. A 1988 study of 129 US cases found that less than 2% of contested custody and visitation cases involved an allegation of child abuse: N Thoennes, J Pearson & P Tjaden Allegations of Sexual Abuse in Custody and Visitation Disputes Association of Family and Conciliation Courts Research Unit Washington 1988.
 Vic Dept of Human Services Discussion Paper: Resolving Cross Jurisdictional Problems in Child Protection Dept of Human Services Melbourne 1996, 6. This is not the full extent, however, of those children who are adversely affected by the geographical limits of jurisdiction. eg a child may not have been placed with an appropriate relative because that relative was outside the jurisdiction.