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Family Law and Child Protection FAMILY LAW AND CHILD PROTECTION Family Law Council, 2002 Report to the Attorney-General Recommendations included the following: Recommendation 1 The Federal Government should establish a Child Protection Service. Recommendation 2 The Child Protection Service should be a national service. Recommendation 3 The objectives of the Child Protection Service should be: 1. To investigate child protection concerns and provide information arising from such investigation to courts exercising jurisdiction under the Family Law Act. 2. To ensure, in the course of its work, that children and families are not subjected to unnecessary investigation, assessment or stress. 3. To avoid unnecessary duplication of resources and effort in the investigation and determination of matters involving both family law and child welfare law issues. 4. To promote the development of a co-operative approach between State and Federal agencies in responding to concerns about child abuse and neglect. Recommendation 4 The Child Protection Service should be an independent service staffed by people with a background in child protection and social welfare and should embrace a multi-disciplinary approach. Recommendation 5 The Child Protection Service should be comprised of a mix of core permanent staff and draw on a mix of contract, fee for service and part-time staff to service rural, regional and remote areas, the needs of indigenous communities and other cultural groups. Recommendation 6 The Child Protection Service should be co-located with appropriate matched services to maximise its effectiveness. Recommendation 7 The establishment of a Child Protection Service should be accompanied by the development of Protocols for co-operation between it and State or Territory child protection authorities. EXECUTIVE SUMMARY This Report arises from the work of the Family Law Council on the interaction between the state and federal systems when child protection issues arise in cases under the Family Law Act 1975 (Cth). The ability of the Family Court of Australia and the Federal Magistrates Service to properly assess child abuse allegations is a matter of great public concern. Wrong decisions in this area can have tragic long-term consequences for children and families. The Federal role in child protection Although the primary responsibility for child protection rests with the States and Territories, the Family Court of Australia and the Federal Magistrates Service play an important role in the protection of children. A substantial proportion of all children’s cases which proceed to trial in these courts involve concerns about physical abuse, sexual abuse and neglect. A history of domestic violence is also a reason why concerns may arise about the safety and wellbeing of children. Cases brought under the Family Law Act are private law cases. It is rare for the child protection authorities of the States and Territories to participate as parties in such proceedings. The reliance on State and Territory authorities to investigate Currently there is no capacity for the courts to investigate such complaints. The Family Court’s Counselling and Mediation services are designed to promote conciliation, not fact-finding. The courts are reliant on the evidence presented by the parties. The Family Law Act requires reports of child abuse concerns to be made to the State or Territory child protection authority, and there is an assumption that the relevant authority will then investigate the case and either substantiate the child protection concerns or declare them to be lacking in substance. However, this misunderstands the role of the State and Territory child protection authorities. They do not have a general investigatory role in child protection. Their mission is tied to their statutory responsibilities. The core responsibility given to State and Territory child protection authorities by legislation is to intervene when children are not being properly cared for by their parent or parents, or are not safe in the family home. The orders which can be made by Children’s and Youth Courts typically involve supervising the parents’ care of the children or taking parental responsibility away from them with the consequence that the children must be placed in alternate care. Many child abuse concerns raised in family law proceedings will not be investigated by child protection authorities because, although the issues may be of considerable importance in the family law litigation, the information provided does not indicate that the child is currently at risk of serious harm or because the child can be made safe by orders under the Family Law Act concerning residence and contact. An example is where a parent alleges a serious incident of physical abuse or a pattern of child maltreatment during the course of the marriage. The issue in proceedings under the Family Law Act is to determine the competing claims of the parents to have a residence order in their favour, or to decide upon arrangements, if any, for contact. A history of domestic violence or physical abuse may be highly relevant to such decisions. Yet it would not be necessary or appropriate for the State or Territory child protection authority to take proceedings under its child welfare legislation because the safety issues can be adequately resolved in the family law proceedings, and the matter is before the Family Court or Federal Magistrates Service. For this and other reasons, including competing demands for scarce resources, as many as half of all reports to State and Territory child protection authorities may be assessed as not requiring further investigation. Even where there has been an investigation, the State or Territory child protection authority may convey very little information about the outcome of that investigation to the Family Court or Federal Magistrates Service. The need for a Federal child protection service When child protection issues become the subject of litigation in the Family Court or Federal Magistrates Service without there being an independent investigation of the concerns, the child protection issues become a matter for the parents to prove or disprove on their own. It can be very difficult for parents to obtain legal aid because even if they satisfy the means test, without independent substantiation of their concerns, they may not satisfy the merits test. Parties who can afford legal representation are put to great expense preparing for litigation. Cases may settle, but compromises about contact may leave children at risk, or break down because the child protection concerns have not been resolved. Parents who believe that they have been the subject of false or malicious allegations are put to great effort and expense in trying to refute them. These cases take a serious toll on children and families, as well as on the resources of the family law system. The Council recommends that to meet this serious problem and gap in services, the Federal Government should establish its own Child Protection Service to investigate child abuse concerns arising in family law proceedings. This Service would need to be organisationally separate from the Family Court of Australia or the Federal Magistrates Service, although it could be co-located with the courts or with another agency. It would only investigate matters on referral from the Court, and if two conditions are fulfilled. First, the child abuse allegation is likely to be a major disputed issue in any subsequent proceedings. Secondly, there is a need for the investigation of allegations of child abuse because evidence is not likely to be presented to the Court through other means. This avoids duplication of the work of State and Territory child protection authorities, or re-investigation of matters where adequate assessment has otherwise already occurred. The establishment of a Child Protection Service is consistent with the recommendations of the Family Law Pathways Advisory Group and is also entirely compatible with the successful approach adopted in the Magellan Project in Victoria to the resolution of child protection cases. The existence of the Child Protection Service will ensure that the proper resolution of cases within the family law sphere is not dependent on the resource allocation decisions and priorities of State and Territory child protection services which do not have the same organisational mission. The need for the co-operation of the State and Territory child protection authorities in providing the level of investigation and reporting required by the Magellan Project is the most serious obstacle to its national implementation. The establishment of the Service will involve some new expenditure, but the evidence of the Magellan Project is that there are also likely to be savings in the family law system as a whole, as cases resolve earlier on the basis of the findings of the independent investigation. The benefits of such a service in determining the truth or otherwise of child abuse allegations and child protection concerns will not only accrue to children and families. The entire family law system will benefit. There will also be benefits for the State and Territory child protection authorities which will need to process fewer notifications and to respond to fewer cases, allowing them to concentrate on their core mission. The continuing role of State and Territory authorities in family law disputes While the establishment of the CPS will go a long way towards ensuring that in cases of alleged child abuse or domestic violence affecting children, the Court has an early independent assessment of the child protection concerns, this does not mean that State and Territory child protection authorities should always refrain from getting involved in dealing with such cases. There will be many situations where they will have an appropriate role in assisting in the protection of children subject to family law disputes. In some cases, it will be most appropriate for action to be taken under the State or Territory child welfare legislation in order to resolve the child protection concerns.
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