Family Law Council's interim report on 'Families with Complex Needs and the Intersection with Family Law and Child Protection Systems'

Last year the Federal Government commissioned a report from the Family Law Council to provide a response to concerns about the federal family law system's interaction with the State based child protection and family violence systems. Last week the Attorney-General released the interim report. The final report is due to be finished by June 2016.

The Family Law Act empowers the Family Courts to make orders about who will have parental responsibility for a child, who a child will live with, how much time they will spend with the other parent or other family members and how they will communicate with family. The Act does not empower the Courts to make orders placing children in the care of a person who is not a party to the proceedings and there is no general 'child protection' power in the Act. Such powers are the domain of the State and Territory children's courts.

The Council identified, based on empirical studies, that many families affected by multiple risk issues present at the Family Courts and rely on the assistance of family relationship centres and family lawyers. The issues involved are a significant feature of the modern family law system. Indeed recent research conducted by the Australian Institute of Family Studies shows that while there has been a reduction in Court filings in the Family Courts since 2006 the proportion of contested parenting matters involving families with complex needs has increased over this period.

The interim report was asked to address the questions of:

1. the possibilities for transferring proceedings between the Family Courts and the State and Territory courts exercising care and protections jurisdiction within current jurisdictional frameworks (including any legal or practical obstacles to greater inter-jurisdictional co-operation); and
2. the possible benefits of enabling the Family Courts to exercise the powers of the relevant State and Territory courts including children's courts and vice versa, and any changes that would be required to implement this approach, including jurisdictional and legislative changes. 

In coming to it's interim recommendations the Council said "it is essential that the criminal law, child protection and family law systems, along with relevant federal, state and territory agencies, are encouraged and supported to work collaborative to achieve safe outcomes for children."

The Council identified two aspects of the current legal system that impede the protection of children: 

1. the increasingly public law nature of the parenting order work of the Family Courts which were designed to deal with private law matters; and
2. the separation of courts and systems dealing with parenting orders, child protection and family violence matters. 

Council made 6 recommendations. 

The first four relate to 'enhancing the capacity for courts to exercise multiple jurisdictions': 

1. That section 69J and 69N of the Family Law Act be amended to remove any doubt that children's courts are able to make family law orders under the Family Law Act & that the government consider the appropriate process of appeal from family law decisions made by state and territory courts;
2. That Part VII of the Family Law Act be amended to provide simplified decision making framework for interim parenting matters; 
3. That the Family Law Act be amended to enable judicial officers to deliver 'short form' judgements in interim proceedings; and
4. That the government implement Recommendation 16-5 of the Australian and NSW Law Reform Commissions' 2010 report - namely that section 68T of the Family Law Act should be amended to provide that, where a state or territory court, in proceedings to make an interim protections order under state or territory family violence legislation revives, varies or suspends a parenting order under section 68R that parenting order has effect until a) the date specified in the order b) the interim protection order expires or c) further order of the Court. 

The final three relate to 'enhancing inter-jurisdictional collaboration'.

1. The Attorney-General raise the following matters at the COAG level: a) the development of a national database of court orders to include order the Family Courts, the state and territory children's courts, state and territory magistrates courts and the state and territory mental health tribunals, so that each has access to the other's orders b) the convening of regular meetings of relevant stakeholder organisations to explore ways of developing an integrated approach to the management of cases involving families with multiple and complex needs c) amending the prohibition of publication provisions in state and territory child protection legislation to make it clear that these provisions do not prevent the production or reports prepared in those proceedings in family law proceedings d) the entry into Memorandum of Understanding by state and territory child protection agencies and the federal family courts to address the recommendations of Professor Chisholm's reports e) the co-location of state and territory child protection department practitioners in federal family court registries and f) the development of dual competencies for Independent Children Lawyers to achieve continuity of representation for children where appropriate;
2. The Council has previously made recommendations in relation to a number of these issues in the Council's 2009 report 'Improving Responses to Family Violence in the Family Law System' these include: a) the adoption of consistent terminology in orders relation to children across relevant State and Commonwealth legislation so that orders are more readily understood by parents and carers of children and those working in family law and child protection, including law enforcement b) the Attorney-General facilitate the development of protocols for the collaborative exchange of information between the family courts and child protection departments, police and mental health services. Council recommends that these matters be placed on the COAG agenda. The Council has previously made recommendations in relation to the issue of Aboriginal and Torres Strait Islander family liaison officers in its 2012 report 'Improving the Family Law System for Aboriginal and Torres Strait Islander Clients' these include the Australian Government provides funding for further positions for Indigenous Family Consultants and Indigenous Family Liaison Officers to assist the family law courts to improve outcomes for Aboriginal and Torres Strait Islander families. Council recommends the government implement this recommendation. 

The report can be found at: http://www.ag.gov.au/FamiliesAndMarriage/FamilyLawCouncil/Documents/Family-Law-Council-Interim-Report-Family-Law-and-Child-Protection.pdf