119The 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 considering 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.
120The federal 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.
121The 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 rec 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 section69ZK 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.
122Children’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.
123Whether 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.
124Protocols 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.
125The 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.
126Notifications 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.
127The Family Court should be the sole court of appeal from care and protection and family law matters that involve a cross-vested element. The appeal system should operate as follows.
In all jurisdictions except Western Australia, where matters with a cross-vested element have been initially heard by a magistrate in either a court of summary jurisdiction or a children’s court, appeals should lie directly to the Family Court de novo on all issues, irrespective of whether they relate exclusively to care and protection or family law matters alone or a combination of such matters.
In Western Australia, appeals from magistrates’ decisions in matters with a cross-vested element should also be able to be heard by the Family Court of Western Australia.
Where matters with a cross-vested element are heard originally by a judge of a children’s court, appeals should lie to a single judge of the Family Court. These appeals should not be rehearings de novo.
In the Family Court, where matters with a cross-vested element are heard by a judge, appeals should lie only to the Full Court of the Family Court.
If a federal magistracy is introduced that deals with children’s matters at first instance, appeals from decisions of those magistrates involving a cross-vested element should be heard by a judge of the Family Court.
Implementation. The Attorney-General through SCAG should seek the agreement of the States and Territories to the proposal that appeals should lie to the Family Court from decisions made in matters in which the proposed cross-vested jurisdiction has been exercised. The relevant legislation including Part X of the Family Law Act, protocols and procedures should be amended accordingly.
128Appellate jurisdiction in matters relating exclusively to care and protection should be conferred on the Family Court. Where such matters arose in children’s courts presided over by a magistrate the Family Court should hear appeals only after any internal avenues of appeal to a judge of that court have been exhausted. The appeal system should operate as follows.
Appeals from care and protection matters originally heard by a magistrate in a court of summary jurisdiction or in a children’s court where there is no internal avenue of appeal should be heard de novo by a single judge of the Family Court or, in Western Australia, by a single judge of the Family Court of Western Australia.
Appeals from decisions of children’s court magistrates in care and protection matters where there is an internal appeal to a judge of that court should be heard by that judge. Any further appeals from that judge’s decision should be heard by a single judge of the Family Court. These appeals to the Family Court should not be rehearings de novo.
Implementation. The Attorney-General through SCAG should seek the agreement of the States and Territories to the proposal that appeals should lie to the Family Court from decisions made in all care and protection jurisdictions. The relevant legislation including Part X of the Family Law Act, protocols and procedures should be amended accordingly.
129Appeals from decisions of Northern Territory courts of summary jurisdiction exercising federal family law jurisdiction should lie to the Family Court alone.
Implementation. The Attorney-General should negotiate with the Northern Territory to effect agreement to this proposal and a proclamation should be made to that effect.
130States and Territories should develop a specialist magistracy to exercise federal family law jurisdiction and to handle care and protection and juvenile justice matters. All major population centres should have their own specialist family and children’s magistrates, while in more remote areas specialist magistrates should operate on circuit.
Implementation. The Attorney-General through SCAG should seek the agreement of the States and Territories to the development of this magistracy.
131States and Territories should produce uniform statistics on family law matters heard in magistrates’ courts.
Implementation. The Attorney-General through SCAG should seek the agreement of States and Territories to a common approach to data collection.
132A specialist Family Court magistracy should be established. These magistrates should be judicial officers in their own right, empowered to hear and determine contested children’s matters.
Implementation. The Attorney-General should introduce a specialist federal magistracy for family matters.
133Judicial officers, including State and Territory magistrates, exercising federal family jurisdiction should receive training in children’s matters. Training for State and Territory magistrates could be provided by members and staff of the Family Court during annual training conferences. Training should include material on
communication skills and appropriate language for communicating with children
issues surrounding disclosure of and family dynamics concerning child abuse
Implementation. In conjunction with other judicial education bodies, AIJA should develop a national core syllabus for this training.
134All magistrates and judges who hear care and protection matters should be trained in children’s issues. Training should include simulated clinical exercises and feedback on the use of appropriate language and communication with children.
Implementation. In conjunction with other judicial education bodies, AIJA should establish minimum training requirements for the children’s court magistracy and judiciary and set guidelines for training programs to be implemented in each jurisdiction.