2.1
Families living with family violence often experience complex, confusing and traumatic interactions with multiple court systems. This can aggravate the safety risks these families experience, particularly given the silos in which these court systems operate.
2.2
This chapter provides an overview of the federal family law system and parallel state and territory family violence and child protection legislation, and how matters involving family violence are considered by those systems. It does not provide a comprehensive description of these systems, but rather highlights aspects that are most relevant to the jurisdictional aspects covered during the present inquiry.
2.3
A number jurisdictions deal with families at a time of crisis and change, but in different ways. Protection orders made under state and territory family violence legislation are aimed at providing immediate and future personal protection from family violence. Whereas family law resolves separation disputes, including parental responsibility and property division and also safety.
2.4
It is important to note that neither the Commonwealth nor the states and territories have exclusive legislative competence in the area of family law, which has resulted in ‘an especially fragmented system with respect to children’. With the exception of Western Australia, all states referred state powers with the effect that the federal parliament has jurisdiction over marriage, divorce, parenting and family property on separation. All states and territories retain jurisdiction over adoption and child welfare.
2.5
Rather than referring its powers to the Commonwealth, Western Australia established a state family court, the Family Court of Western Australia, which exercises both federal and state jurisdiction.
2.6
This chapter does not seek to substantively engage with the significant challenges and criticisms that have been raised in evidence to the Committee. These will be addressed in later chapters of this report. Rather, this chapter presents an overview of the two jurisdictions and how they intersect.
2.7
First, the chapter will explain key aspects of state and territory family violence legislation. Second, the chapter will outline the powers and procedures of the Family Law Act 1975 (Cth) (the Family Law Act). Third, the chapter will examine how the systems interact and how they may create a gap in protection for families experiencing family violence. The chapter will conclude by noting that not all matters proceed through multiple court systems in a logical or sequential way, and many families navigate matters concurrently through these different courts.
State and territory courts exercising jurisdiction under family violence legislation
2.8
The focus of state and territory courts exercising jurisdiction under family violence legislation is the prevention of family violence and the protection of persons who experience, or who are at risk of, family violence. The primary ways in which state and territory courts achieve this is by making protection orders.
2.9
The purpose of family violence protection orders is to protect people from future family violence. This is usually done by prohibiting a person who has used, or threatened to use, family violence from engaging in certain conduct.
2.10
Family violence legislation generally allows courts to impose any restriction on a person who has used or threatened to use family violence that it thinks necessary or desirable for the protection of the person at risk. For example, a protection order may prohibit a person from:
behaving in an intimidating, offensive or abusive manner towards a protected person;
communicating with the protected person; or
approaching or entering particular premises where the protect person lives or works.
2.11
Family violence legislation in each state and territory confers power to make protection orders on courts of summary jurisdiction in the relevant jurisdiction—that is, local or magistrates courts (hereafter magistrates courts). As noted below, magistrates courts also have limited jurisdiction under the Family Law Act.
2.12
Some kinds of protection orders may be made by authorities other than judicial officers. For example, in some jurisdictions, registrars of the Court may make interim protection orders, and police officers can make temporary protection orders for the immediate protection of a victim of family violence.
2.13
Breach of a protection order under state or territory family violence legislation is a criminal offence, attracting a police response and invoking the criminal justice system.
2.14
Though not entirely within the scope of the federal family law system, although highly relevant to it, the Committee has been tasked to examine how the national administration and enforcement of intervention orders can be improved to better protect those families experiencing, or at risk of, family violence. This is discussed in Chapter 4 of this report.
Federal family law
2.15
Family law deals with disputes about parenting arrangements for children and the division of property, and past and continuing family violence has an effect on all these matters.
2.16
The Australian Constitution gives the Commonwealth the power to make laws with respect to ‘marriage’, and ‘divorce and matrimonial causes; and in relation thereto, parental rights, and the custody and guardianship of infants’. It also has the power to legislate with respect to ‘matters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States’.
2.17
Between 1986 and 2008, all states and territories (with the exception of Western Australia) referred state powers to the Commonwealth with respect to ex‑nuptial children and non-married or de facto couples.
2.18
The effect of these referrals, and the original powers established under the Australian Constitution, is that the federal parliament has jurisdiction over marriage, divorce, parenting and family property upon separation. The state and territory governments retain legislative jurisdiction over adoption, child welfare and same-sex couples.
Structure of courts
2.19
Two federal courts deal with matters under the Family Law Act—the Family Court of Australia (the Family Court) and the Federal Circuit Court of Australia (the Federal Circuit Court). The protocol for the division of work between the two courts provides that where there are serious allegations of child sexual or physical abuse or ‘serious controlling family violence’, proceedings should be filed in the Family Court, rather than the Federal Circuit Court.
2.20
Some state and territory courts are granted jurisdiction under the Family Law Act to hear and make orders under that Act. This is discussed later in this chapter.
Property division
2.21
Part VIII of the Family Law Act deals with disputes about property and spousal maintenance for formerly married couples, providing a mechanism to alter property rights that would otherwise apply under common law and equity. Part VIIIAB provides separating de facto couples in all jurisdictions other than Western Australia ‘virtually the same’ property relief as married couples.
2.22
Property settlement can be reached by informal agreement, written agreement (including a Binding Financial Agreement) or court order (either by consent or as determined by a Judge). The Court can make two types of orders:
a declaration of the title or rights that either party has with respect to property; and
an order altering property rights to effect a just and equitable distribution between the parties, after considering the contributions of each party and their future needs.
2.23
The current provisions give the Court ‘a very broad discretion’ to determine the property disputes of separated families, but ‘provide little guidance’ as to how that discretion is to be exercised.
2.24
The Family Law Act makes no mention of family violence in the context of property settlements. However, in the case of Kennon v Kennon, the Full Court of the Family Court held that family violence, in some limited circumstances, may be a relevant factor in determining property disputes. In order to satisfy the Kennon criteria, a party must prove on the balance of probabilities that they were subject to a violence ‘course of conduct’ which,
had a ‘significant adverse impact’ upon their contributions; or
made those contributions ‘significantly more arduous’.
2.25
At present, the Family Law Act does not penalise the perpetrator for their actions by considering the impact of family violence as a negative financial contribution or the future needs of parties. Further, there ‘is no clear guidance as to the level of adjustments to be made where it is found that a party’s contributions should be given greater weight due to the actions of the other party’. This is entirely a matter for judicial discretion.
Parenting matters
2.26
Part VII of the Family Law Act provides for the resolution of parenting disputes between separating parents. A parenting order can deal with any aspect of parental responsibility for a child. Parenting orders may be made in favour of a parent or another person, such as a grandparent or other relative of the child. Such orders may specify who has parental responsibility for a child, with whom a child lives, the time a child spends with their parents or other persons, and other aspects of the child’s care, welfare or development.
2.27
The paramount consideration when making a parenting order is the ‘best interests of the child’. In determining a child’s best interests, the Court must give primary consideration to:
the benefit to the child of having a meaningful relationship with both of the child’s parents; and
the need to protect the child from physical or psychological harm from being subject to, or exposed to, abuse, neglect or family violence.
2.28
The Court may consider a number of additional matters including:
the child’s relationship with each parent and other persons (including grandparents or relatives);
the extent to which each parent has engaged with the child and their wellbeing;
the impact of the parental separation on the child;
if the child is an Aboriginal or Torres Strait Islander child, their right to enjoy their culture and the impact of the parenting order on that cultural right; and
any family violence involving the child or a member of the child’s family.
2.29
When making a parenting order, the Court is required to apply a presumption that it is in the best interests of the child for the child’s parents to have ‘equal shared parental responsibility for the child’.
2.30
The Family Law Act clarifies that ‘equal shared parental responsibility’ does not ‘provide for a presumption about the amount of time the child spends with each parent’. Rather, the Family Law Act provides that ‘equal shared parental responsibility’ refers to ‘making a decision about a major long term issue’ about the child.
2.31
Despite this, the Committee heard substantial evidence that the distinction between ‘responsibility’ and ‘time’ is not well understood, influencing both the culture within the judiciary and the assumptions of separating parents when agreeing to consent orders. This is discussed further in Chapter 6.
2.32
When making a parenting order, the Court must ensure that the order does not expose a child to an unacceptable risk of family violence and is consistent with any protection order made under state and territory family violence legislation. Further, the Family Law Act provides that the presumption of equal shared parental responsibility does not apply if the Court believes, on reasonable grounds, that a parent has engaged in child abuse or family violence. The Family Law Act also provides that protection orders made under state and territory family violence legislation are relevant to parenting orders.
2.33
The presumption for equal shared parental responsibility may also be nullified by evidence that it would not be in the best interests of the child (as defined at paras 2.24 and 2.25) for the parents to have equal shared parental responsibility.
2.34
The Family Court and the Federal Circuit Court has developed the Family Violence Best Practice Principles (Best Practice Principles) to give guidance to judicial officers of that court on how to approach parenting proceedings where there are allegations of family violence or child abuse.
2.35
Significantly, the Family Law Act does not empower 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. These powers are within the jurisdiction of the state and territory children’s courts.
Injunctions for personal protection under the Family Law Act
2.36
In addition to the protection orders issued under state and territory family violence legislation by magistrates’ courts, the Family Law Act also provides for injunctions for personal protection. However, these injunctions protect a limited range of families.
2.37
As noted in Chapter 1, in December 2016 the Australian Government released proposed amendments to create a new criminal offence for breach of a personal protection injunction issued under the Family Law Act.
2.38
Due to the constitutional foundation of the Family Law Act, injunctions under that Act are not available to protect unmarried couples without children, same-sex couples without children, siblings or other family members. The Family Law Act provides that courts may grant an injunction for personal protection under the child welfare provisions or the matrimonial clauses only. Both are addressed below.
Injunctions to protect the welfare of the child
2.39
The Court may order an injunction for the personal protection of the child, the child’s parent, a person with a parenting order in respect of the child or a person who has parental responsibility for a child. The injunction may also restrain a person from entering or remaining in the child’s place of residence, employment or education or that of their parent.
2.40
Where there are allegations of family violence made during an application under Part VII of the Family Law Act, the Court must consider whether an injunction should be granted.
Injunctions to protect a party to a marriage
2.41
The Family Law Act permits a court to grant an injunction in circumstances arising out of a marriage:
for the personal protection of a party to the marriage;
to restrain a party to the marriage from entering or remaining in the matrimonial home or the other party’s residence or place of work;
for the protection of the marital relationship;
in relation to the property of a party to the marriage; or
in relation to the use or occupancy of the matrimonial home.
2.42
‘Personal protection’ is not defined under the Family Law Act, but courts have interpreted the term to include protection from physical harm as well as protection of a person’s wellbeing and freedom from interference and harassment. A victim of family violence may also seek an order to exclude a person from particular places.
Enforcement
2.43
If a Family Law Act injunction is breached, the person protected by the injunction must file an application to seek an order from the Court regarding the contravention. The application must be accompanied by an affidavit establishing the facts of the contravention and a filing fee paid.
2.44
A person in breach of an injunction may be arrested under the Family Law Act. A police officer may arrest a person if the officer believes on reasonable grounds that the person has breached the injunction by causing, or threatening to cause, bodily harm to the person protected by the injunction, or has harassed, molested or stalked that person. Both members of the Australian Federal Police and state and territory police forces are empowered to conduct arrests. There is no power of arrest in relation to injunctions for matters other than personal protection.
Relationship with protection order under state and territory family violence legislation
2.45
Injunctions granted under the Family Law Act may operate in parallel with protection orders made under state and territory family violence legislation.
2.46
If a person has sought, or is seeking, a protection order under state or territory family violence legislation, an additional injunction cannot be sought under the Family Law Act unless the proceeding under state or territory legislation has lapsed, been dismissed or those orders have been set aside or expired. There is no bar to a person who has obtained an injunction under the Family Law Act to apply for a protection order under state or territory family violence legislation.
2.47
If an injunction made under the Family Law Act for either the protection of a child’s welfare, or for the protection of a party to a marriage, is capable of operating concurrently with a protection order made under state and territory family violence legislation, both orders can operate together. However, where the two orders are inconsistent, the injunction made under the Family Law Act prevails.
2.48
However, a state or territory court with the requisite jurisdiction may revive, vary, discharge or suspend an order made under the Family Law Act either for the protection of a child’s welfare or for a party to a marriage, to the extent it expressly or impliedly requires or authorises a person to spend time with a child.A court may only do so if it also makes or varies a protection order under state or territory family violence legislation and there is material before the Court that was not before the Court that made that original Family Law Act injunction. Where a state or territory court is making or varying an interim order, it may not discharge the original family law injunction. An order by a state or territory court that revives, varies, discharges or suspends a family law order is subject to a 21 day time limit, and parties must return to the federal family law courts for a review of the original order.
2.49
As noted in Chapter 1, in December 2016 the Australian Government released proposed amendments to remove the 21 day limit on state or territory court’s variation of a family law order. This will be further discussed in Chapter 4.
Procedures
2.50
The Family Law Rules 2004 (Cth) set out the procedures that apply in the Family Court. Proceedings in the Federal Circuit Court are governed by the Federal Circuit Court Rules 2001 (Cth), which adopt some of the Family Law Rules. Consequently, the court rules and procedures in each court differ in some respects.
2.51
This section outlines some key procedural events as families experiencing family violence seek to navigate through the family law courts.
Initiating application
2.52
A person commences proceedings in a family court by filing an ‘Initiating Application (Family Law)’ form. The form is the same for the Family Court, the Federal Circuit Court and the Family Court of Western Australia. In the form, the applicant provides details about the parties and any children, and sets out the orders sought. The form also includes a place to provide information about ‘any existing orders, agreements, parenting plans or undertakings to this or any other court’ about ‘family law, child support, family violence or child welfare issues’ concerning any of the parties or children.
2.53
After an initiating application is filed, the respondent files a ‘Response to an Initiating Application (Family Law)’ form. In this form, the respondent sets out any disagreement with the facts or information contained in the initiating application, and the alternative orders sought.
Compulsory family dispute resolution
2.54
Both the Family Court and the Federal Circuit Court require parties seeking parenting orders to participate in family dispute resolution (FDR) before commencing court proceedings. In FDR, an independent FDR practitioner assists the parties to resolve parenting disputes, through mediation, conciliation or other means. Parties who participate in FDR obtain a s 60I certificate, which must be attached to the initiating application. Information disclosed in FDR is admissible in court proceedings only in very limited circumstances.
2.55
There are five different types of s 60I certificates, two of which have particular relevance to family violence:
A certificate under s 60I(8) is issued where the FDR practitioner considers that FDR would not be appropriate, bearing in mind the matters set out in the Family Law (Family Dispute Resolution Practitioners) Regulations 2008. These matters include violence, the safety of the parties, inequalities of bargaining power and the risk, of child abuse.
It may not always be apparent to the FDR practitioner that these risk factors are present until FDR has commenced. In such circumstances, s 60I(8)(d) provides for a certificate to be issued where a person begins FDR but the FDR practitioner considers that it is inappropriate to continue.
2.56
Importantly, it is possible for parties to bypass FDR by arguing one of the exceptions to obtaining a s 60I certificate, including where there are reasonable grounds to believe there has been, or there is a risk of, child abuse or family violence. Parties that rely on this exception must satisfy the Court that they have received information from a FDR practitioner about services and options available in cases of abuse and violence. In both the Family Court and the Federal Circuit Court, a registrar will usually determine if the requirements for an exception have been met.
Notice of Child Abuse or Family Violence (Form 4)
2.57
A party who alleges that a child has been abused or is at risk of abuse must file a Notice of Child Abuse or Family Violence (Form 4). The Family Law Rules also require that a Form 4 be filed if there are allegations that there has been, or there is a risk of, family violence involving a child, or a member of the child’s family. In the form, parties can provide details about the family violence or child abuse, or the risk of such violence or abuse.
2.58
Under the Family Law Act, once a Form 4 is filed, the Court must consider making orders to enable the parties to obtain appropriate evidence, and to protect the child or any party to the proceedings.
Affidavits and other documents
2.59
An affidavit setting out the facts of the case can form part of the evidence before the Court. In the Family Court, parties are only to file affidavits if the parties seek interim or procedural orders. A different rule applies in the Federal Circuit Court, where the initiating application and response must be accompanied by affidavits.
2.60
Parties to parenting proceedings in either court are required to file copies of any protection orders made under state or territory family violence legislation that affect the child or a member of the child’s family. This is usually done by attaching a copy of any orders to the initiating application.
Procedural hearings
Family Court
2.61
In the Family Court, the first hearing is usually before a registrar and deals with procedural matters. In parenting proceedings, the registrar can refer the parties to the Child Responsive Program, which involves meetings between the parties and a family consultant assigned to the case. The family consultant may also meet with any children, if appropriate. The objective of the program is to encourage parents to focus on the needs of their children when determining parenting arrangements, and to reach agreement about the parenting arrangements that support the best outcomes for the children.
2.62
The family consultant also screens for family violence, and where there are identified concerns about family violence, the consultant may take protective action, including notifying relevant child protection authorities. The family consultant provides the parties, their legal representatives and the Court with a written report of the main issues affecting the family. Significantly, this process differs from FDR in that the information gathered in meetings is admissible in court.
2.63
One or both of the parties may elect to engage a private practitioner to provide an expert opinion to the Court by way of a written report. The Court may also appoint a private practitioner for the purpose of obtaining expert evidence in a particular matter. These private practitioners are referred to as ‘single expert witnesses’. In some cases a single expert witness may prepare a report similar to a family report prepared by a family consultant. When this occurs, sometimes the expert witness is described as a ‘family report writer’.
2.64
If agreement is not reached, the registrar may conduct further procedural hearings to prepare the matter for hearing before a judicial officer. In addition to these procedural steps, at least 28 days before the final hearing, parties to parenting proceedings must complete a parenting questionnaire, which includes questions about family violence and child abuse, alcohol and drug use, and the details of the parties’ current living and parenting arrangements. This information can be admitted as evidence before the Court.
Federal Circuit Court
2.65
In the Federal Circuit Court, the first hearing is usually before the judge assigned to the case. The judge can make a variety of orders about the conduct of the proceedings, including referring the parties to other forms of dispute resolution, or a conciliation conference. Conciliation conferences are more likely to be part of property division matters rather than parenting proceedings.
2.66
While there is no Child Responsive Program in the Federal Circuit Court, the Court can order parties to meet with a court-appointed family consultant at a Child Dispute Conference.
2.67
In either court, an Independent Children’s Lawyer may also be appointed to represent the best interests of a child in the proceedings on the application of any of the parties or an organisation concerned with the child’s welfare, or in the initiative of the Court.
2.68
For parenting proceedings, the Court is required to conduct proceedings (both procedural and trials) in a way that will safeguard parties to proceedings against family violence. This includes, for example, empowering the Court to limit (or not allow) cross-examination of a particular witness. However, this does not apply in financial proceedings. This is discussed further in Chapter 5.
Trial
2.69
The law requires that both the Family Court and the Federal Circuit Court adopt a ‘less adversarial’ approach when conducting child-related proceedings. This means that the proceedings are conducted with as little formality as possible, and the judicial officer actively directs the conduct of the proceedings. In addition, at any point in the trial, either court may refer parties to FDR or counselling.
2.70
As with the procedural hearings discussed above, either court may order that a court-appointed family consultant prepare a family report if the care, welfare or development of a child is relevant to the proceedings. The Court may also appoint a single expert witness to prepare a report on the family.
2.71
In determining whether to order a family report, the Best Practice Principles suggest a number of matters that the Court may direct the family report writer or single expert witness to address in cases where family violence or child abuse is alleged, including:
the impact of the family violence or abuse;
the harm, or risk of family violence, to the children;
any benefits if the child spends time with the parent against whom the allegations are made; and/or
whether the safety of the child and the parent alleging the family violence or abuse can be secured if there is contact with the person against whom allegations have been made.
Interim hearings
2.72
Both the Family Court and the Federal Circuit Court can make orders on an interim basis pending final orders. In some circumstances, interim orders can be made without notice to the other parties to the proceedings, including where there are family violence or child abuse concerns.
Consent orders
2.73
Consent orders are orders agreed to by the parties about parenting arrangements or property division. The orders must be put before the Court, which will consider making formal orders that bind the parties.
2.74
Parties may apply for consent orders at any stage of the proceedings in the Family Court and the Federal Circuit Court. Where there are current proceedings before the Court, consent orders can be made on oral application or by lodging a draft consent order. Where there are no current proceedings, consent orders may be sought by lodging an ‘Application for Consent Orders’.
2.75
For matters involving parenting disputes, each party must advise the Court whether a child or one of the parties has been, or is at risk of being, subjected to family violence, and importantly, how the consent orders appropriately respond to family violence issues.
2.76
The Court retains discretion about whether or not to make the consent orders as sought, or to make other orders it considers more appropriate. The Family Law Act however mandates that the Court, when exercising its discretion, must consider the paramount consideration in parenting proceedings: the best interests of the child. This includes the need to protect children from abuse, neglect and family violence.
2.77
For matters involving property settlements, the Court will not make an order unless it is satisfied that in all circumstances the orders are just and equitable.
2.78
Consent orders (for either parenting or property matters) are usually considered by a registrar of the Court. The registrar can refer the matter to a judge where appropriate, including to deal with family violence issues.
2.79
Where a consent order includes allegations of family violence, registrars are to consider a number of factors, including the following:
the seriousness of the allegations;
the extent of the involvement of the child in any incidents of violence or abuse;
how the orders address the violence and abuse issues;
where there is any reason to believe the orders would be used to continue to control or maintain contact with the parent with whom the child lives;
where there are other issues such as mental illness, drug and alcohol abuse or serious parental incapacity which would present a risk to the child;
whether the parties had had legal advice;
whether the Court can be satisfied that the parties have agreed to the orders without pressure;
whether the party who alleged the violence or abuse is genuinely satisfied the orders do not present an unacceptable risk to the child or any other person; and
if an Independent Children’s Lawyer has been appointed, whether he or she agrees to the consent orders.
2.80
The Family Court advised the Committee that applications for consent orders comprise approximately two-thirds of filings in the Family Court.
Exercise of family law jurisdiction by state and territory courts
2.81
The Family Law Act allows consideration of certain parenting and property matters in courts of summary jurisdiction in each state and territory. Courts with summary jurisdiction include the Local Court of New South Wales, and the magistrates courts of Victoria, Queensland, Western Australia, South Australia, Tasmania, the Australian Capital Territory, and the Northern Territory (hereafter state and territory magistrates courts).
2.82
For example, proceedings for a parenting order can be commenced in a state or territory magistrates court, however those courts are limited in the orders that they may grant. If the parties do not agree to the exercise of the jurisdiction by a state or territory magistrates court, the Court must transfer the matter to a federal family court.
2.83
The effect of this limitation is that a state or territory court can only make parenting orders where both parties agree on the content of the order, or where both parties agree that the Court hear and determine the matter.
2.84
Magistrates courts are also vested with jurisdiction under the Family Law Act when making or varying a protection order under state or territory legislation, to vary a parenting order. The Court may only revive, vary, discharge or suspend a parenting order to the extent that it relates to a person spending time with a child, and where it has information that was not before the Court that made the original parenting order. The power to amend such orders does not require that the parties apply for an amendment to parenting orders. The Court may exercise the jurisdiction upon its own initiative.
2.85
The effect of amending parenting orders differs depending on whether it is amended during proceedings for an interim protection order or a final protection order. Magistrates courts are not permitted to discharge a parenting order during proceedings for an interim protection order. Further, amendments during proceedings for an interim protection order will only have effect for 21 days.
Interaction of family law and state/territory family violence legislation
2.86
Family violence is not an issue in all cases before federal family courts, although it is raised in the majority of cases heard before those courts. Similarly, not all people who seek family violence protection orders are involved in proceedings in the family courts whether because separation and parenting matters are not an issue or because families have difficulties accessing the family courts.
2.87
However, for those families that do need to seek orders from a state or territory court to ensure personal protection and also resolve family law matters, it is important that the two legal systems ‘facilitate this as seamlessly and effectively as possible’.
2.88
As a consequence of the overlap between the two law systems, family law orders and protection orders may both regulate contact between family members. Further, in some circumstances, family law and protection orders may also both deal with property of the parties. This means that there is potential for inconsistency between a protection order made by a state or territory court and an order made by a federal family court in relation to the same family.
2.89
For example, as the joint report of the Australian Law Reform Commission and the New South Wales Law Reform Commission (ALRC/NSWLRC report) noted, a protection order may specify that a person is not to communicate with, or come within a certain distance of, the person protected by the order. However, a parenting order made by a federal family court may require contact between the separated parents for the purposes of facilitating arrangements for each parent to spend time with the children. In a more troubling example, the Commissions noted that a protection order may prohibit a person from coming within a specified distance of the other parent’s home, while a parenting order allows the parent to collect and return the child at the home.
2.90
As noted above, the Family Law Act provides that a protection order made under state or territory family violence legislation that is inconsistent with a Family Law Act order which provides for, requires or authorises a person to spend time with a child, is invalid to the extent of the inconsistency. This means that conditions in a parenting order made under the Family Law Act will override any inconsistent requirements in a protection order, which in itself, can lead to a gap in protection. This protection gap was addressed by a number of submissions to the inquiry and is addressed in Chapters 3, 4 and 6.
2.91
In practice, the inconsistency is often avoided by the state and territory courts making exceptions for contact or communication authorised or required by a family law order. The ALRC/NSWLRC report noted that ‘in effect, this means that responsibility for deciding how contact should take place, when there are children involved, is left to a decision by the federal family law courts or agreement between the parties’.
Interaction of family law system and child protection systems
2.92
Each state and territory has its own child protection system and legislation, however, the ‘overall philosophy and principles of these systems are similar’. In contrast to the family law system, child protection systems are designed to protection children from abuse and neglect, and to support vulnerable families, rather than mediate parental disputes. The two systems intersect however by regulating parental responsibility and contact between parents and children.
2.93
Each state and territory provides a statutory test for substantiating allegations of abuse or neglect. While terminology varies between the jurisdictions, the threshold for statutory intervention is generally considered similar. Most jurisdictions provide a definition of a ‘child in need of protection’ or a child ‘at risk’. A child is usually only considered to be in need of protection if there is no parent able and willing to protect the child.
2.94
Types of abuse or neglect that are included in most definitions of a child in need of protection include where the child has suffered or is likely to suffer:
emotion or psychological harm; or
neglect, such as a lack of basic care, including medical care.
2.95
Some jurisdictions require the harm to be ‘significant’ or ‘serious’.
2.96
A family usually becomes involved with the child protection system following a report or notification to the relevant state or territory child protection department, which may come from family members, neighbours or professionals who work with children. In its interim report, the Family Law Council noted that family members are the most common group of notifiers of suspected child abuse. This is despite legislative requirements that mandate professionals who work with children to report any suspicions of ‘significant’ abuse and neglect.
2.97
Responses to reports of child abuse or neglect vary across the different systems. Generally, there is an intake stage when the department decides whether to conduct an investigation, refer the family to support services or take no action. If an investigation is conducted, the department will subsequently determines whether the report is ‘substantiated’, meaning that there is sufficient reason to believe that the child has been or is likely to be abused, neglected or otherwise harmed.
2.98
Once a report of abuse has been substantiated, the child protection department may apply to the state or territory children’s court for a care and protection order. The Family Law Council noted that this is ‘usually considered an option of last resort’, commenting that ‘for cases where risks of actual child abuse and neglect are lower, family support services can be arranged to provide general support to the family’.
2.99
The number of children removed from their families into out of home care has continued to increase, particularly for Aboriginal and Torres Strait Islander children, where family violence is ‘the leading driver of child protection intervention’. Between 2009 and 2013, the rate of Aboriginal or Torres Strait Islander children on care and protection orders has increased from 43.8 to 59.2, while the non-Indigenous rate has remained ‘relatively stable’, increasing from 5.2 to 5.8 per 100,000 children.
2.100
Most state and territory jurisdictions have a specialised children’s court for both care and protection orders as well as youth justice matters. In the Northern Territory and Tasmania there is no specialist children’s court. In those jurisdictions, child protection matters are head by generalist magistrates who work across a range of areas of criminal and civil jurisdiction.
2.101
When considering child protection orders, the paramount consideration under child protection legislation is variously described as the child’s best interests, the safety, welfare and well‑being of the child, or the safety, wellbeing and best interests of the child.
2.102
There is ‘a large variation’ in the types of orders that can be made by children’s courts, however they can be broadly categorised as follows:
administrative arrangements (voluntary agreements between child protection departments and parents that transfer custody or guardianship without going to court);
interim and temporary orders (a limited period of supervision or placement of a child in out of home care);
finalised supervisory orders (the department supervises or directs the level and type of care to be provided to the child, though parents usually retain guardianship and parental responsibility);
finalised third-party parental responsibility orders (orders transferring all parental responsibilities to a person considered appropriate by the Court such as a relative); and
finalised guardianship or custody orders (orders that place the child in the custody of the department, while the parent retains legal guardianship).
The system in practice
Different pathways
2.103
Research from the Magistrates’ Court of Victoria, indicates that the most common pathway into the legal system for families experiencing violence is through a state or territory magistrates court, with police commencing proceedings for an intervention order.
2.104
It is important to note however, that not all families commence in state and territory courts and then proceed to the federal family law courts. Families often proceed through the legal system in a non‑linear or iterative way. Indeed, the types of behaviours that satisfy the legal definition of family violence often mean that families will not seek police involvement at all, nor seek an intervention order in a magistrates court.
2.105
As noted in Chapter 1, this report advocates for an accessible, equitable and responsive family law system which better prioritises the safety of families. Significantly, this should occur regardless of how families first enter the system. The remainder of this report seeks to address these requirements.