10.21 Family courts Purpose This procedure outlines the interface between the department and family courts, including the process for: responding to information about harm or risk of harm to a child subject to family court orders or proceedings, or whose parents reside separately responding to a family court order, including Magellan matters, requesting intervention by the department undertaking an investigation and assessment, where there is an interface or potential interface with the family court or family court orders intervention by the department when a child requires protection from a parent who has a parenting order, or where there are current proceedings in a family court or the child’s parents reside separately. Key steps 1. The family courts and child protection interface 2. Exchange of information 3. Assess information received about harm or risk of harm 4. Respond to an order requesting intervention by the department - section 91B orders 5. Undertake an investigation and assessment 6. Respond to a child in need of protection What ifs - responding to specific family court matters Standards 1. A child of separated parents is afforded the same right to protection and intervention by the department, as other children. 2. A decision to intervene in a family court proceeding, or to provide documentation for a family court application or proceedings, is made only after consultation with Court Services. 3. Documentation to be provided to a parent, in relation to a family court application (other than a letter to a parent under the Child Protection Act 1999, section 15(2)), is forwarded to Court Services in the first instance (for quality assurance), and is signed by a CSSC manager. 4. If there is a protective parent who is assessed as willing to protect a child but unable to do so, because of an order requiring the child to live, or have contact, with a parent to whom child protection concerns apply, the department will take necessary action to protect the child. Chapter 10.21 Family courts July 2013 Page 1 5. Every effort is made to avoid multiple proceedings running in concurrent jurisdictions (for example, the Childrens Court and Family Court). So far as possible decisions about a particular child should be made by only one court, namely the court that is most appropriate in the circumstances (the ‘one court principle’). Authority Child Protection Act 1999 Family Law Act 1975 Family Law (Child Abduction Convention) Regulations 1986 Family Law Rules 2004 Federal Circuit Court Rules 2001 Protocol between the Family Court of Australia and the Federal Magistrates Court of Australia and the Department Child Safety Queensland Chapter 10.21 Family courts July 2013 Page 2 Key steps - Family courts 1. The family courts and child protection interface 2. Exchange of information 2.1 Family consultants 2.2 Independent Children’s Lawyers 2.3 Magellan case management model 2.4 Court Services 3. Assess information received about harm or risk of harm 3.1 Official notification by family court personnel or a party to parenting proceedings (Form 4 notice) 3.2 Consider the implications of an existing parenting order 4. Respond to an order requesting intervention by the department - section 91B orders 4.1 Section 91B orders 4.2 Magellan matters, including a section 91B order 5. Undertake an investigation and assessment 5.1 Alleged harm during contact ordered by a family court 5.2 Alleged harm by a parent with whom the child lives under a parenting order 6. Respond to a child in need of protection 6.1 Intervention where there are current proceedings in a family court 6.2 Provide intervention where a parent has a ‘lives with’ parenting order 6.3 Provide intervention where a parent has a ‘contact’ parenting order 6.4 Provide Intervention when a child requires ongoing protection What ifs - responding to specific family court matters 1. What if a decision is required about which court should hear proceedings? 2. What if a parent requests a ‘statement of position’ letter from the department? Chapter 10.21 Family courts July 2013 Page 3 1. The family courts and child protection interface Family courts The Family Court of Australia is a federal (Commonwealth) court established under the Family Law Act 1975. It deals with a range of matters arising out of relationship breakdowns, including divorce, property settlement and the care of children of a relationship. In deciding whether to make a particular parenting order, a family court must regard the best interests of the child as the paramount consideration. The Federal Circuit Court of Australia and state Magistrates Courts also have jurisdiction under the Family Law Act 1975 to deal with children’s matters. For the purpose of this procedure, the term ‘family courts’ refers to the Family Court of Australia, the Federal Circuit Court of Australia and state Magistrates Courts. A family court application is referred to as a parenting application in the family law jurisdiction. A family court order is otherwise referred to as a parenting order in the family law jurisdiction. The family courts’ jurisdiction includes: the power to make parenting orders in relation to children - for further information, refer to the practice resource Working with family courts a broad welfare jurisdiction to deal with special matters such as consent to medical treatment certain powers under international conventions - refer to Chapter 10.22, 2. Manage intervention under the Hague Convention. Further information about family courts is available on the Family Court of Australia, the Federal Circuit Court of Australia and the Family Law Courts websites. The department The department has the statutory authority to investigate allegations that a child has been harmed or is at risk of harm, assess a child’s need for protection or take other actions considered appropriate. The family courts do not have the expertise, role or resources to perform this function. Whether or not there are proceedings in a family court, the department has the lead responsibility to ensure the child’s safety and need for protection. A child of separated parents has the same right to protection and to receive services from the department as any other child. The interface between the department with the family courts is guided by this procedure and the Protocol between the Family Court of Australia and the Federal Magistrates Court of Australia and the Department of Child Safety Queensland. Consider the level of intervention in family court proceedings Where matters come before the family courts and the department holds relevant information related to child protection matters involving any of the relevant parties, it is highly desirable that this information is made available to the court at the earliest opportunity. Chapter 10.21 Family courts July 2013 Page 4 Whenever consideration is given to intervening in proceedings and prior to making a decision to do so, departmental staff must consult Court Services, about the matter. Costs and other responsibilities may be incurred by the department intervening, including Crown Law representation. In general, the more intrusive the departmental intervention, the more significant the level of intervention in family court proceedings - refer to the Intervention diagram and the Key factors for the Department when considering the level of intervention in a Family Law Court Proceeding. When a child is in need of protection and the department is considering intervening in family court proceedings, refer to 6. Respond to a child in need of protection. 2. Exchange of information Information exchange between the department and family courts only occurs where legislation permits the disclosure of information. For further information, refer to the practice resource Working with family courts and the Protocol between the Family Court of Australia and the Federal Magistrates Court of Australia and the Department of Child Safety Queensland. Before exchanging relevant information, consider the following matters: the safety, well-being and best interests of the child are the paramount consideration any statutory requirements of privacy and security of personal information the well-being and protection of children at risk is generally better secured through the exchange of information between those concerned with the child and the family courts are in a better position to make appropriate orders if they are fully aware of proceedings in other jurisdictions. Ensure that the information to be exchanged is limited to only that which: is relevant to the respective roles of each party is relevant to the specific purpose for which it is disclosed safeguards the child’s safety and promotes their best interests. 2.1 Family consultants Family consultants (social workers or psychologists) may be assigned to a family court case to: help parties to resolve a dispute assist and advise the court and give evidence about a case write and provide a report to the court about the family advise the court about the services provided to families by government, community and other agencies. For further information, refer to the Family Consultants Fact Sheet. Chapter 10.21 Family courts July 2013 Page 5 Contact by a family consultant Should a family consultant contact the CSSC or a RIS directly to request information about a child or family, refer the family consultant to Court Services in the first instance. Court Services will advise the CSSC or RIS as to how to progress the family consultant’s request. 2.2 Independent Children’s Lawyers An order for an Independent Children’s Lawyer (ICL) may be made during family court proceedings. The ICL is appointed to represent and promote the best interests of a child in family court proceedings, by enabling the child to be involved in decision-making about the proceedings. The degree of the child’s involvement is decided by the ICL, based on the extent to which the child wishes to be involved and the extent that is appropriate for the child having regard to the child’s age, developmental level, cognitive abilities, emotional state and views.