6.1
More than half the parenting cases that proceed to the Court involve allegations of family violence. A recent study in 2015 found that in more than 83 per cent of matters involving allegations of family violence or child abuse, parental responsibility is shared between parents for the care of that child. For judicially-determined arrangements, 40 per cent of parents share ongoing parental responsibility despite allegations family violence or child abuse.
6.2
The capacity of the family law system to respond to instances of family violence has been canvassed in Chapters 3 and 4. However, with respect to family violence matters involving children, evidence to the inquiry suggests that the family law system is ‘in crisis’ and is ‘failing’ to protect children.
6.3
As noted earlier in this report, a victim of family violence will be required to demonstrate that they will act protectively of their children under state law, yet ‘acting proactively’ under the federal family law may demonstrate an attitude deemed ‘incompatible with the primary consideration of the child of having a meaningful relationship with both parents’. Legislative reforms introduced in 2012 sought to address this conflict by prioritising a child’s safety from harm by directing the Court to give greater weight to the need to protect a child from harm. Significantly, however, a recent evaluation of those amendments has found that they have ‘largely not achieved the objective of improving safety [of children]’.
6.4
Importantly, the Committee was told that the family law system can play a role in preventing the unnecessary removal of children by child protection departments. The Aboriginal Family Violence Prevention and Legal Services Victoria explained:
I think it can be incredibly important for clients to look at the safety of the family and make arrangements before matters escalate to the point of a child protection intervention … [W]ith the right supports, the family law system could be used to make other safe arrangements—to facilitate a safe separation from the violent partner, if necessary, and perhaps to facilitate an agreement about the children living with grandparents or a different family member, whether permanently or temporarily, while the family violence situation is resolved ... There would be better agencies for families to avoid escalating down the road of child removal and out-of-home care.
6.5
This can also be critical for families with parents or children with disabilities who are affected by family violence, where there is often greater involvement by child protection departments.
6.6
Yet, where the family law system cannot provide sufficient protection or support to families affected by violence, families may seek informal arrangement including ‘supervising the perpetrator’s time with the children themselves’. The lack of responsiveness of the family law system to family violence can expose both parents and children to ever increasing risks of harm following separation.
6.7
This chapter addresses the impact of family violence on children and prioritising the safety of children and the rights of parents to maintain contact with their children. It extends the discussion from Chapter 4 regarding improving the information available to the Court, focussing on the integration of child protection agencies and the role of family consultants in preparing family reports.
6.8
This chapter then considers proposals for incorporating children’s perspectives in court processes, examining the role of independent children’s lawyers in proceedings. Lastly, this chapter will discuss the evidence received for the ongoing safety review of court orders as they relate to children.
Recognising the impact of family violence on children
6.9
As noted in Chapter 3, inconsistent orders issued by different jurisdictions can result it unsafe and traumatic experiences for parents and children. If a family obtains an intervention order under state and territory legislation, that order may contain an exception to permit contact for the purpose of family law matters.
6.10
As a result of such orders, families affected by family violence are ‘often placed in a double-bind with child protection authorities requiring them to minimise the contact of their children with a violence ex-partner, while the family law system requires them to facilitate such contact’.
6.11
Similarly, Jannawi Family Centre commented that children are ‘fairly invisible’ in the family law system. The Centre also explained how ongoing contact with perpetrators can cause continued trauma:
When children do have contact it creates ongoing trauma. There are usually incidents during contact changeovers, and they will disclose harm in returning, to then have to be forced to go back the week after and the week after because a court order states that there is fortnightly contact.
6.12
A number of participants identified that the ability for such orders to be made indicates a lack of understanding about how family violence affects children, and how ongoing contact with perpetrators can cause continued trauma. Statewide Children’s Resource Program commented:
For many years it was believed that children could just bounce back from adversity. We know that this is not the case. Children have a unique experience of family violence and this experience is very different from that of adults. Family violence has harmful, immediate and long-term effects on children. Children who experience violence have significant trauma responses. In fact the severity of the impact of family violence on children is similar regardless of whether they witness the violence or experience the violence directly.
6.13
Evidence to the inquiry also noted that even where family violence is not directed at children, the impact of observing violence on another family member can be deeply traumatic. Some participants stated that abuse of a parent is also abuse of a child. For example, the Australian Childhood Foundation advised that children suffer a range of emotional, behavioural and developmental problems from family violence and that:
Children are never merely observers or bystanders in circumstances where one of the parents is violent toward the other. They are always harmed. To what degree and in what ways is the task of the Court to understand and respond appropriately to. It is the duty of those making decisions on behalf of this most vulnerable group to be as informed as they possible can.
6.14
The ACT Human Rights Commission provided similar evidence, stating that children are ‘not passive or silent observers to violence occurring in their families’ and that the impact of family violence is long-lasting. The Commission recommended reform that is child-centric, placing the needs, safety and rights of the child at the centre of decision-making. To do so requires improving the information available to the Court.
6.15
Prioritising children’s safety, particularly ahead of other considerations including the rights of a perpetrator parent to have contact with a child, was broadly supported by participants. This is discussed further in the following section.
Prioritising children’s safety
6.16
As noted in Chapter 2, when determining a child’s best interests, the Court must give primary consideration to the child’s relationship with parents, and the protection of the child.
6.17
After amendments introduced in 2012, the Court is now to give greater weight to the safety of the child over the benefit of a relationship with both parents. In determining the best interests of the children, the Court may also consider a number of additional matters including the presence of family violence.
6.18
Despite this, a significant number of stakeholders were of the view that the family law system prioritises the rights of parents to have a meaningful relationship with the child above the child’s right to be safe, and advocated that children’s safety be given greater priority in the family law system. Family and Relationship Services Australia explained:
While the rights of children to be safe are well known, ‘rights’ are not necessarily backed up with best practice. While the rights of the child to be safe trumps the rights of the parent to have access to children this is hardly ever born out in court orders; it is nearly always the rights of the parents to have a meaningful relationship with the child that is given precedence. Children sometimes must live with or spend time with a perpetrator of family and domestic violence. This can result in emotional insecurity, an environment not conducive to optimal social, emotional cognitive and even physical development. ... Where there is entrenched high levels of parental conflict, or where children have experience or are likely to be exposed to continuing family and domestic violence or child abuse, parent-child contact may be highly inappropriate and can have serious, long-lasting adverse effects on children.
6.19
Similarly, Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih advised that the language of ‘meaningful relationships’ between parents and children is ‘sometimes given more importance than a history of family violence’. They concluded that this cultural understanding of the Family Law Act 1975 (Cth) (Family Law Act) has led to family consultants ‘looking for ways to continue to grow the post-separation relationship between the children and their parents, perhaps at the expense of fully considering issues of physical and emotional safety’. This ‘prevailing and preferred philosophy … plays a role in silencing information about family violence or diminishing its significance’.
Box 6.1: Prioritising children’s safety
The following is a selection of responses to the Committee’s questionnaire:
‘When it’s said that ‘we are doing what is in the child’s best interests’ [it] is not correct. Children being forced back to the perpetrator is never in their best interest and more and more research shows this clearly’.
—Respondent from Queensland
‘The system does not allow the Court to truly put a child’s best interest first, due to the current interpretation of what is in a child’s best interest’.
—Respondent from Western Australia
‘Orders are not made in children’s best interests, they are made in parents best interest. This is because parents have a voice and they have money’.
—Respondent from Queensland
‘Decisions are made not in children’s best interest. Safety is not first priority, rather access to both parents is most important, no matter how unsafe. Past violence [by] fathers and intervention orders are ignored’.
—Respondent from Victoria
‘Children need to be protected from all types of abuse. The law needs to change to get rid of the equal shared care starting point. It doesn’t reflect research … It is not always in children’s best interest to be spend [time] overnight with both parents’.
—Respondent from Queensland
6.20
This approach in the application of the Family Law Act was reflected upon by Professor Richard Chisholm in 2009 in the Family Courts Violence Review. In that review, Professor Chisholm recommended that the provisions for care arrangements for children be independent of the provisions of parental responsibility. This would return the Court’s focus to identifying arrangements that are in a child’s best interests.
6.21
The following section examines the link between parental responsibility and caring arrangements for children where there is a history or future risk of family violence.
Equal shared parental responsibility
6.22
The Family Law Act establishes a presumption of equal shared parental responsibility when making parenting orders:
When making a parenting order in relation to a child, the Court must 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.
6.23
For both interim and final orders, the presumption may be rebutted by evidence that it would not be in the best interests of the child for the child’s parents to have equal shared parental responsibility for the child.
6.24
However, the presumption relates solely to the allocation of parental responsibility for a child, and it does not provide for a presumption about the amount of time the child spends with each parent. Further, the Act provides that the presumption does not apply if there are reasonable grounds to believe that a parent of the child (or a person who lives with a parent of the child) has engaged in child abuse or family violence.
6.25
The Family Law Act also establishes that once an order for equal shared parental responsibility has been made, the Court must consider equal time or substantial and significant time arrangements if it is in the best interests of the child and it is workable.
6.26
As noted above, when 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.
6.27
The presumption of equal shared parental responsibility was first introduced in amendments to the Family Law Act in 2006. In 2009, the Australian Institute of Family Studies (AIFS) evaluated the effect of the 2006 amendments and again in 2015 when it reviewed reforms introduced in 2012. In both cases the AIFS found that the provisions were not achieving their intended outcomes.
6.28
In its 2009 evaluation, the AIFS found that even where both family violence and child abuse had been alleged in a case before the Court, over 75 per cent of these cases led to orders for equal shared parental responsibility, whether made by a judge or agreed to by the parties through consent orders. The AIFS findings are presented in Table 6.1 below.
Table 6.1: Parental responsibility outcomes by allegation of violence or child abuse, judicially determined and consent after proceedings cases, post-1 July 2006
|
|
|
|
|
|
|
|
|
|
Shared parental responsibility
|
75.8%
|
79.6%
|
71.9%
|
89.8%
|
|
Sole to mother
|
14.0%
|
18.5%
|
18.0%
|
4.9%
|
|
Sole to father
|
4.0%
|
1.0%
|
4.4%
|
1.8%
|
|
Other
|
6.3%
|
0.9%
|
5.6%
|
3.4%
|
|
Number of children
|
140
|
152
|
129
|
395
|
Source: Australian Institute of Family Studies, Evaluation of the 2006 family law reforms 2009, p. 190.
6.29
The AIFS evaluation of the 2012 reforms concluded that although some improvements had been made, many parents continue to share ongoing parental responsibility for their children despite a history of family violence or child abuse (Table 6.2).
Table 6.2: Children in shared parental responsibility arrangements, by whether there were allegations of family violence and/or child abuse, pre- and post-2012 reforms
|
|
|
|
|
Both family violence and child abuse
|
72.3%
|
69.9%
|
|
Either family violence or child abuse
|
79.5%
|
83.7%
|
|
Neither family violence nor child abuse
|
89.9%
|
89.9%
|
Source: Australian Institute of Family Studies, Evaluation of the 2012 family violence amendments: responding to family violence, 2015, p. 66.
6.30
The most significant change occurred in respect of equal shared parental responsibility orders made by judges, which reduced from 51 per cent pre‑reform to 40 per cent post-reform. It is important to note however that few parenting matters proceed to a final hearing with a judicially determined order.
6.31
Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih stated that the AIFS findings suggest that ‘the exceptions [for family violence and child abuse] contained in the presumption [for equal shared parental responsibility] were not working as intended’. In their view, the 2012 reforms had not made any substantial shift in the number of equal shared parental responsibility arrangements agreed to by consent in matters involving family violence, which according to the AIFS evaluation remained largely stable.
6.32
Evidence to the inquiry expressed significant concern about the operation of these sections of the Family Law Act. Some stakeholders noted the family violence or child abuse exceptions to the presumption of equal shared parental responsibility, but advised the Committee that these have been rarely used by the Court. The Victorian Southern Metropolitan Region Integrated Family Violence Executive noted:
The presumption of shared care and equal responsibility in the Family Court assumes there is a level of cooperation and respect between the parents and the capacity to attend appropriately to the daily needs of children. Where there is family violence, this is inherently not possible.
6.33
Further, a significant number of stakeholders reported that there is misinterpretation of the presumption for equal shared parental responsibility as a presumption for equal shared time. The Law Council of Australia stated that:
The term ‘equal shared parental responsibility’ is interpreted by people in the [family law] community as meaning ‘equal time’. It is not, but that is what they see—they see that word ‘equal’. And what we know, from the research, is that that leads some people to resolve parenting matters way before they come to court—these are people who are settling privately between themselves or with some form of mediation—by settling for arrangements which they think the law requires of them. The law does not require them, and they put children at risk.
6.34
Similarly, Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih further explained:
…the current provisions of the [Family Law Act] tend to impel both family law professionals and litigants (or pre-litigation parents) to encourage or agree to parenting orders for equal shared parental responsibility and post-separation shared care time (whether ‘equal’, ‘substantial and significant’ or simply quite a lot). This can mean that allegations about family violence are perceived as running counter to the prevailing and preferred philosophy … The legislative connection between shared parental responsibility and the kind of time orders that have to be considered by judges, other professionals and parents is particularly influential regarding the practical outcomes for children and the way in which their actual post-separation parenting arrangements are structured.
6.35
The ability for the provisions to be misinterpreted was first commented on by the AIFS in its evaluation of the 2006 amendments, finding:
A common misunderstanding is that equal shared parental responsibility allows for ‘equal’ shared care time, and that if there is shared parental responsibility then a court will order shared care time. This misunderstanding is due, at least in part, to the way in which the link between equal shared parental responsibility and time is expressed in the legislation… There was also concern that the complexity of the new provisions, together with the presumption of equal shared parental responsibility have to some extent, diverted attention from the primacy of the best interests of the child.
6.36
Noting these AIFS findings in both 2009 and 2015, Women’s Legal Services Australia recommended removing the language of equal shared parental responsibility to ‘shift culture and practice towards a greater focus of children’s needs and their safety’. This recommendation was supported by a number of other participants in the inquiry. Other participants recommended amending the best interests of the child test to assess the safety of the child from physical or psychological harm, rather than the safety of the child together with the benefit of having a meaningful relationship with both parents.
6.37
Other participants made stronger recommendations, supporting the prohibition of contact between perpetrators and their children. For example, Bravehearts commented: ‘In no circumstance should a person who has been convicted of child sexual offending, offending against a child, have custody of that child or live with that child. It is beyond belief’.
6.38
The Royal Australian and New Zealand College of Psychiatrists advocated for disallowing a child spending unsupervised time with a perpetrator of family violence ‘unless the Court is satisfied that such an arrangement could be safe and in the child’s best interests’. ANROWS noted that this approach, whereby evidence must be presented to the Court that children will be safe, has already been adopted in New Zealand:
… prioritising children’s safety could require parents alleged or found to have perpetrated family violence to provide evidence to the Court that children can be safe under their care. A good example of this approach can be found in New Zealand where children are at the forefront of the decisions and allegations or findings of family violence are dealt with on the basis of a ‘rebuttable presumption’ that a parent who had used violence against a child or against the other parent, would not have the custody of, or unsupervised access to the child unless the Court could be satisfied that the child would be safe during visitation arrangements.
6.39
These recommendations were not supported by all participants in the inquiry. The Non-Custodial Parents Party recommended amending the Family Law Act so that the Court could give primary consideration the benefit to the child of having a meaningful relationship with both parents. This would reverse the amendment made in 2012 that the Court is to prioritise the safety of children over the right to have a relationship with both parents.
Improving the information available to the courts
6.40
As noted in Chapter 4, there was broad recognition that the courts require expert evidence when making decisions about family law following instances of family violence. This was particularly borne out in evidence to the inquiry for matters involving children. As the family courts are neither forensic bodies nor have an independent investigatory capacity, the Court is reliant on expert information provided to it.
6.41
However, stakeholders indicated that the quality and availability of expert evidence to the Court for parenting matters requires significant improvement, identifying two specific areas:
the integration of child protection agencies’ investigations into family law proceedings; and
improving the quality and breadth of family reports.
6.42
Both are examined below.
Integration of child protection agencies’ investigations
6.43
The majority of cases before the federal family courts involve family violence; family violence is at ‘the centre of a family breakdown or dispute’ and consequently, the family law system needs to ‘prioritise the safety of children at the centre of these disputes.’
6.44
Often, child abuse or exposure to family violence perpetrated by one parent against the other is a core element in the cases considered by the family law courts. However because child protection falls under the responsibility of state and territory agencies, there is ‘a risk that the safety of children is not addressed appropriately and early enough’ in the family law system.
6.45
A number of sections in the Family Law Act are designed to bring child safety concerns to the attention of child protection departments, including provisions that require a Notice of Risk Form to be filed with the Court, known as a child risk form. When a child risk form is filed, the registrar of the Court is required to notify the relevant state or territory child protection department.
6.46
Other court staff who may be aware, or have reasonable grounds for suspecting, that the child has been abused or is at risk of abuse are similarly obliged to notify the relevant child welfare authority. However, ‘only a small proportion of family court notifications to the child protection system become the subject of children’s court proceedings’, with some evidence indicating that investigations occur in only 25 per cent of cases where a child risk form is provided to the state body.
6.47
Where a child protection department investigates following a notification from the Court, but decides not to initiate protective proceedings in the children’s court, the family court may request the intervention in the family law proceedings of an officer from the child protection department. However, the Court cannot compel the child protection department to intervene.
6.48
Where the department has conducted an investigation, or has had previous involvement with the family, the Court may issue a subpoena requiring the child protection department to provide the Court with documents or information relating to that investigation or involvement. A lawyer for one of the parties may also issue a subpoena for the child protection department’s file.
6.49
In the joint 2010 report, the Australian Law Reform Commission (ALRC) and NSW Law Reform Commission (NSWLRC) identified an ‘investigatory gap’ caused by the lack of investigatory powers of the family courts to provide independent investigations in cases where child abuse has been identified. The Commissions stated that children who are vulnerable in this gap are those who:
are the subject of family law proceedings involving allegations of child abuse;
state child protection authorities decide not to assist; or
are not included in a program such as the Magellan case management program for cases involving serious child abuse.
For these children, there are allegations of abuse but there may be no agency to conduct an independent investigation of the allegations and to present evidence to the family courts.
6.50
Women’s Legal Service Queensland advised that an ‘investigatory gap’ can be created where child protection agencies are reluctant to investigate allegations when family law proceedings are afoot, commenting:
Unfortunately, it can leave very vulnerable children exposed to ongoing violence and abuse … The Family Law Courts do not have an investigatory arm and this means without evidence, they will invariably maintain contact, including significant time arrangements.
6.51
Similarly, Springvale Monash Legal Service stated:
… the inability of the state and federal systems to work together ... is a huge efficiency issue … [W]e have had two matters where, on the day of the trial, the child protection agency stepped in despite our advocating and trying to get them involved at an earlier stage. There are all sorts of reasons why that happens. But they are really debilitating efficiency issues that you have and need to be addressed. I know that we have been advocating for many years to find some coherence between child protection, an intervention for family violence and the family law.
6.52
Further, Legal Aid NSW advised that in its experience, the NSW Department of Family and Community Services ‘generally declines the Court’s invitation to intervene’. InTouch Multicultural Centre Against Family Violence provided similar evidence, also commenting that even where child protection departments provide information, these reports ‘may still not meet the evidentiary requirements of the family law system’.
6.53
A number of participants in the inquiry advocated for improved integration of child protection agencies as a way to improve the information available to the Court when parenting matters involve family violence allegations. For example, Legal Aid NSW commented that the involvement of those agencies in family law proceedings may be of assistance to the Court, as well as to families affected by family violence, recommending:
… any legislative or other measures that would allow judges exercising jurisdiction under the Family Law Act 1975 to also exercise child welfare powers (where appropriate), for example by allowing dual commissions so that in appropriate circumstances a child protection agency could be compelled to assist and intervene in family law proceedings.
6.54
InTouch recommended that relevant child welfare departments appear as amicus curiae (someone who is not a party to a case and is not solicited by a party, but who assists a court by offering information that bears on the case) in family law proceedings to provide information to the Court about investigations conducted by the department.
6.55
Bravehearts was of the view that states and territories are the appropriate bodies to conduct such investigations but that the ‘current system is failing in large part because accurate investigation and risk assessment is not conducted nor relevant information … provided or available in the Federal Courts’. Rather, Bravehearts recommended that where an allegation of family violence is made in family law proceedings, the case be automatically referred to the relevant child protection department for investigation, with a report required to be provided back to the Court on the findings of that investigation.
6.56
The ALRC/NSWLRC Report made a similar recommendation that investigatory services in family law proceedings be provided by a new specialist section in state and territory child protection departments. The Report identified the advantages of such an arrangements as including:
drawing on existing chid protection expertise;
providing a dedicated service responsive to the particular needs of Family Courts;
developing expertise within child protection agencies in the needs of Family Courts;
providing a resource of people familiar with both systems who can ‘translate’ between the systems and educate participants in both systems; and
providing a service that is not in competition with resources that need to be devoted to state child protection matters.
6.57
Women’s Legal Service Queensland supported the ALRC/NSWLRC recommendation, commenting that ‘serious consideration should be given to the establishment of such an agency as a matter of urgency’.
6.58
The Northern Rivers Community Legal Centre recommended ‘more extensive use’ of the Court’s subpoena power under section 69ZW in relation to child protection agencies, particularly where a party or both parties are self‑represented. The Centre advocated this evidence being provided to the Court prior to the preparation of the family report.
6.59
National Legal Aid identified that the family courts vary their practice in respect of subpoenas under section 69ZW, commenting that the variation in practice ‘adds to the complexity for these authorities in respect of the provision of an appropriate and timely response’. It explained:
For example, in relation to section 69ZW, in some jurisdictions a written report is expected with, as a consequence, preference being given to the issue of subpoena at an early stage; whilst in contrast, in WA the child protection authority is required to provide documents that are already in existence from a defined list which ensures a timely response.
6.60
National Legal Aid therefore recommended that where possible, the family courts adopt consistent processes when requesting information from child protection departments, particularly where done so by subpoena.
6.61
In the 2010 report, the ALRC/NSWLRC recommended a suite of changes to state and territory legislation to facilitate the provision of confidential information to the family courts, including that:
state and territory child protection legislation should not prevent child protection agencies from disclosing to a federal family court relevant information about children involved in federal family court proceedings in appropriate circumstances;
the federal family courts and state and territory child protection agencies develop protocols for:
dealing with requests for documents and information under section 69ZW of the Family Law Act; and
responding to subpoenas issued by federal family courts;
the federal family courts develop protocols with all state and territory child protection agencies for the exchange of information.
6.62
The Committee is aware that recent amendments in New South Wales now enable the exchange of reports between the NSW Department of Family and Community Services and the federal family courts.
6.63
Two significant Family Law Council reports have examined the intersection of the family law system with child protection systems at the state and territory level. In these reports, the Council concluded that the fragmented jurisdiction of the family law system, child protection and family violence protection orders ‘impedes the protection of children’.
6.64
With respect to the integration of child protection departments in family law proceedings, the Council recommended:
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 of reports prepared for children’s court proceedings in family law proceedings;
the co-location of state and territory child protection department practitioners in federal family court registries; and
the development of protocols for the collaborative exchange of information between the family courts and child protection departments, police, and mental health services.
Magellan program
6.65
To some degree, the level of integration recommended in evidence to the inquiry discussed in the section above, is currently available for the most serious cases alleging child abuse before the Family Court.
6.66
The Magellan program operates as a dedicated pathway within the Family Court for cases of serious harm, providing a co-ordinated, multi-agency approach by the Family Court, the state child protection department and Legal Aid to the resolution of parenting disputes involving allegations of serious physical or sexual abuse of children.
6.67
Parenting cases dealt with in the Magellan list are intensively case managed, with cases overseen by a team consisting of a registrar, a judge, and a family consultant. The program involves support from child protection departments through the provision of a Magellan report assessing questions of risk and abuse and legal aid commission through the provision of an Independent Children’s Lawyer. Cases in this list adhere, at every stage, to a strict timeline.
6.68
In 2007, AIFS evaluated the Magellan program, finding that it had been successful in responding to allegations of serious child abuse. The AIFS evaluation found that matters case-managed under the Magellan program:
resolved more quickly (the total length of cases, from the date of application to finalisation is shorter by an average of 4.6 months; from the date the Court was advised of the allegations to the case outcome, Magellan cases were 3.4 months faster);
have greater involvement of the statutory child protection department (as demonstrated by the number of investigations, the evidence on file of the department planning to give evidence at trial, and the preparation of a short, focused ‘Magellan Report’ that is presented to the Court early in the matter);
are dealt with by fewer different judicial officers; and
are more likely to settle early.
6.69
In 2010, the ALRC/NSWLRC report similarly found that the Magellan program had ‘narrowed the gap’ by:
… providing for agreed ways in which child protection agencies will work with the family courts in child abuse cases. But it has not closed the gap: it does not operate in all regions of Australia or in the Federal Magistrates Court.
6.70
The Family Law Council also noted in 2015 that the Magellan program is not currently available in the Federal Circuit Court, where ‘the vast majority of parenting disputes are now heard’.
6.71
The Queensland Law Society commended the Magellan program noting that under the program, the Court can order a report from the relevant child protection agency, which outlines whether:
the agency intends to intervene in the proceedings;
there have been any relevant investigations; and
any recommendations or other relevant material.
6.72
In the Society’s view, the program should be extended and a similar procedure be introduced where the Court can order a report from relevant authorities, including child protection agencies, police and state health departments in matters involving family violence which would outline information relevant to the Court’s assessment of family violence.
Family reports
6.73
The Court may be assisted in determining parenting matters by admitting into evidence reports from professionals. These may include Family Reports prepared by:
court-based family consultants; or
external report writers engaged by the family courts pursuant to Regulation 7 of the Family Law Regulations 1984; or
private psychologists, psychiatrists, paediatricians, speech and occupational therapists, and educational experts (expert reports).
6.74
Family consultants may interview children and their parents/carers to provide reports to the Court on what orders will be in the best interests of children. The Court uses the evidence provided by the family consultant on a wide range of matters to assist with determining what orders should be made. The information provided to the family consultant is not privileged and can therefore be reported to the Court.
6.75
The preparation of family reports is governed by the Australian Standards of Practice for Family Assessment and Reporting (the Standards). Developed in 2015, these provide minimum standards and best practice guidelines for family assessments in family law matters that are applicable to both court‑based family consultants and private practitioners engaged under Regulation 7.
6.76
Although stakeholders widely supported the provision of expert evidence to the Court when family law matters involve allegations of family violence, a substantial focus of evidence to the inquiry identified concerns regarding:
the quality of family consultants’ reports provided to the Court;
the process of developing reports;
the limited availability of family consultants and resulting delays; and
the costs of obtaining a family report.
Quality of reports
6.77
The Committee received evidence that family reports have contained significant factual errors and false information, or that were otherwise dismissive of physical assaults or downplayed violence as ‘conflict’. Bravehearts also reported that it is aware of family consultants recommending action to the Court that ‘routinely places children at high risk’ due to outdated understandings of family violence and child abuse.
6.78
A recent study by Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih examined a series of family reports, with their research finding that family consultants frequently recommended that children spend significant time with the perpetrators of family violence.
6.79
The quality of family reports was also a feature of the report by the Victorian Royal Commission into Family Violence. The Commissioner, the Hon. Professor Marcia Neave AO advised the present inquiry:
We certainly heard a lot of evidence about the quality of report-writing, and some examples were given to us which were fairly appalling ... How widespread it is, I don’t know ... But my impression, and this is anecdotal, is that there is a view that they’re uneven and sometimes, they’re not very good at all.
6.80
A recent study by Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih has also found that there is ‘significant variation in family report writers, in the way they go about doing things in their practice frameworks and in their qualifications’.
6.81
Yet the findings and recommendations of family consultants can be ‘extremely powerful’ in the direction of the Court’s decision. They can also impact the parties’ out-of-court negotiations, with the Domestic Violence Crisis Service advising that many of their clients ‘simply consent’ to the report’s recommendations due to the weight the Court places on those reports.
6.82
The Castan Centre for Human Rights Law explained that cross-examination of the family consultant is the only way to challenge the recommendations contained in the family report. The Centre noted that ‘this action is beyond the financial and legal capability of many victims of family violence who may feel that the consultant did not adequately take into account the nature and existence of violence in their case’.
6.83
At a public hearing, Ms Rathus explained the challenge of cross-examination of family consultants for self-represented litigants:
[W]hen people are representing themselves they have no idea how to analyse—you are analysing a document that is a description of you. There is nothing more personal. What we know is that … a practitioner brings to the law is the objectivity to stand back from the client and understand, apart from anything else, how the client looks to everyone else. But when you’re the client and you are trying to cross-examine someone about this incredibly personal report that has been written about you, you have no capacity at all to bring an objective eye to it and to ask the questions that need to be asked. In fact, self‑representing litigants ask exactly the questions that a good lawyer never would. They dive right in. They reveal all kinds of other silly things about themselves, because they’re so terrified and so upset … There couldn’t be a worse combination of a court that doesn't have enough time to consider these things and self-representing litigants trying to deal with these documents.
6.84
To address the concerns regarding the quality of family reports and the challenges with self-represented litigants cross-examining family consultants, a number of stakeholders recommended the development of an out‑of‑court complaints process to review the conduct and recommendations of family consultants. This is addressed later in this chapter.
6.85
Family consultants are not required to undergo family violence training. Junction Australia commented that ‘safe decisions about the future custody of children from families where domestic violence has occurred cannot possibly be made’ without a ‘solid understanding of the dynamics of domestic violence and the methods of control and coercion’. This was echoed by a significant number of participants in the inquiry. The professional capacity and understanding of family violence by family consultants, as well as proposals for an accreditation process, is discussed further in Chapter 8.
Process of developing a family report
6.86
The process for developing a family report was also identified as a concern by stakeholders, most critically in relation to the time spent with families. Evidence to the inquiry noted that in some cases a family consultant may only interview a family for an hour, or at the most two hours. Ms Rathus commented:
Some of the women were interviewed for only an hour or, at the most, two hours. The fathers will be interviewed, the family report writer might see everyone together and the whole thing might take less than a day. Yet that family report will become potentially one of the most influential documents in the whole proceedings.
6.87
Centacare Brisbane similarly noted that where family consultants have limited time to conduct interviews, they ‘cannot gather all relevant background on domestic and family violence and child abuse matters’. The organisation also identified that this process can result in family law orders, that ‘pull against’ family violence orders (that prohibit all contact with children), and child protection orders (that may provide only for ‘supervised contact’) whilst the recommended family law order may be recommending ‘shared care’.
6.88
In another example, Women’s Legal Services Australia reported that one family consultant spent an hour with each family member before writing a report which advised that there were no indications that any claims of family violence were accurate, and resulted in a child being ordered to live with the perpetrator. The Australian Paralegal Foundation reported similar accounts.
6.89
The Central Australian Aboriginal Family Legal Unit (CAAFLU) similarly commented that ‘a certain number of hours is not going to be enough’ to capture the experiences of the family affected by family violence, and the report ‘cannot give the judge what he needs in that short frame of time’.
6.90
The process for developing family reports was described as ‘sterile’ and ‘intimidating’, nor is there an opportunity for the family consultant to build a rapport with children which can also impact on the information provided by children in the development of the family report. Rather, Ms Rathus recommended the following process:
Family report writers should instead set aside a morning where they are going to interview mum in this case. Then, in the afternoon, they are going to interview dad from another case. Then, in a couple of weeks time, they get dad in from the first case, and, in a couple of weeks time, they do something else. You would then do it over a period of time. In the end, it needs to add up to more than two hours with mum, two hours with dad and an hour watching them with the kids. If they saw everyone twice, but over a period of time, that would start to change the dynamic that we’ve set up at the moment, which is so dangerous and artificial.
6.91
Junction Australia recommended that family reports should not be ‘the only source of information’ about family dynamics and ‘should be written by experts in domestic and family violence’. CAAFLU similarly recommended additional information be provided to the Court by way of a separate family violence report prepared by separately qualified independent professional:
It would simply be an assessment of the extent of the violence and could considering mapping, for example, who else in the family could assist this family … If we were to have a family violence report at the very outset, that would then assist in any of the court forums that we’ve been talking about, and it would take the pressure off the family report writer, at a later stage, to be developing recommendations around long-term orders. Also, because it's something that’s sooner and almost immediate for the clients, they would be more inclined to engage in the family law process, because something’s actually happening; we’re not waiting for this ideal report to be written at some later stage, which doesn’t really make sense to our clients anyway.
6.92
Queensland Domestic Violence Services Network recommended a ‘combined panel approach’ comprising a women’s specialist service, a child development expert (who can identify and articulate the impacts of family violence on a child), a perpetrator engagement and behaviour specialist, and a lawyer. The Network commented:
Not only would this remove any collusion with professionals, it would lead to an informed decision regarding the best interests and safety of all parties … This panel approach may also contribute to clear and purposeful messages of accountability and responsibility.
6.93
A panel-approach to the development of family reports was also recommended by The Deli Women and Children’s Centre.
Availability
6.94
The availability of family consultants was also identified as a challenge by some stakeholders. For example, in Alice Springs, there is only one family consultant engaged to provide family reports to the Court, which can create further delays for families affected by violence.
6.95
Further, Eastern Domestic Violence Service commented that the ‘field [of available family consultants] tends to comprise of a closed shop of report writers who have contacts in the legal professional and have a reputation of being “liked” by judges’. The Service recommended a ‘complete overhaul’ of the family report system that ‘prioritises the safety of children and their parents’.
6.96
The Royal Australian and New Zealand College of Psychiatrists, the Hume Riverina Community Legal Service and National Legal Aid, recommended additional funding for the provision of expert advice to the Court.
6.97
In the 2017-18 Budget, the Australian Government announced it will provide $10.7 million over the forward estimates to the Family Court of Australia, the Federal Circuit Court of Australia and the Family Court of Western Australia. The funding will provide for the creation of 17 new family consultant positions nationally and support additional training. The Attorney‑General’s Department stated:
Improved access to family reports and identification of family violence risks will assist the family law courts to manage complex disputes, many of which involve allegations of family violence or child abuse.
6.98
The Community and Public Sector Union, representing family consultants employed directly by the Courts, reported that their members have found their casework has ‘increased dramatically’ over the past five years. This has, in turn, impacted the time that each family consultant has to complete reports. The Union stated that ‘this is not sustainable long term because there is limited opportunity to reflect on outcomes and best practice’. The Union welcomed the announcement by the Australian Government to employ additional family consultants across Australia.
Costs
6.99
The Committee heard that family reports can cost many thousands of dollars, depending on the experience and reputation of the consultant. The Australian Association of Social Workers, the representative professional body for social workers, noted its concern regarding the high costs of private consultants. To address the exorbitant cost of family reports, Help Family Law recommended that the cost of family consultants be independently determined.
6.100
If a party qualifies for Legal Aid in a family law matter, the cost of the report will be covered by the grant. However, People with Disability Australia advised that this can be challenging for such parties as there is no opportunity to have another report prepared for the Court. The organisation supported a right of appeal or review of family reports.
Calls to return to in-house family consultants
6.101
To address both concerns with costs and quality of family reports, a number of participants in the inquiry suggested that family consultants be brought back within the Court and the abolition of private practitioners engaged by the Court under Regulation 7. The former Commissioner of the Victorian Royal Commission into Family Violence, the Hon. Professor Marcia Neave AO commented at a public hearing for this inquiry:
My personal view is that you would have, ideally, experienced practitioners working within the Family Court to do this work, but that's again in the past. That is what used to happen. Unfortunately, the funding for that was removed, and it was outsourced, and so now we have a situation where a lot of the work is done outside the Court.
6.102
This evidence was echoed by the Hon. Professor Nahum Mushin AM, a Justice of the Family Court until 2011, who in a submission commented that the reliance on expert evidence from inside the Court is one of the greatest strengths of the family law system in Australia. Professor Mushin stated:
With the steady reductions in funding, the great proportion of that evidence now comes from private practitioners … One of the strengths of … in-house reports was … a greater trust in the Courts’ expert witnesses, particularly in matters in which family violence was relevant.
6.103
Professor Mushin noted anecdotal evidence that the costs of reports from a small number of private practitioners are ‘exorbitant’ and submitted that the Court’s funding be increased to return to the former structure of reports being prepared by in-house family consultants. Professor Mushin also recommended a scale of costs be considered.
6.104
The Community and Public Sector Union also noted that where family consultants are employed directly by the Court, ‘it is more cost effective and ensures consistency across states [as] the Courts can then implement internal consistent reporting practices across the states and ensure relevant professional training is consistent’. The Union continued:
At the moment, some judges refer to external Regulation 7 Family Consultants because workload pressures for in house Family Consultants mean they cannot meet demand for timely reports. This is problematic because the CEO of the Courts does not have control over the decision of judges to outsource this work and its creates additional uncontrolled expenditure. Members report that the quality of Regulation 7 Family Consultants reports can vary, in some cases being of no use to the Courts in assisting to resolve disputes.
6.105
Research by Professor Rachael Field, Ms Zoe Rathus AM, Dr Samantha Jefferies, and Dr Helena Menih has indicated that family reports done by in‑house family consultants ‘tend to be of higher quality’ than reports done by private practitioners engaged under Regulation 7. These findings were also made by the Victorian Royal Commission into Family Violence.
Incorporating children’s perspectives in court
6.106
In order for the Court to have a greater comprehension of the impacts of family violence on children, ‘there must be greater scope for children and young people themselves to be heard in the family law system’. A significant number of participants in the inquiry advocated for improving the ability for children’s voices and perspectives to be heard by the Court. To a great extent, this has echoed evidence in other reviews and reports that have examined options for greater involvement by children in proceedings.
6.107
For example, Ms Rosie Batty stated:
… children are never around any of the discussions we have. We need to engage with children. We need to listen to them. We need to create safe and age appropriate ways for them to be able to say what they want and what is right for them and to listen to them. We are hugely influenced right now that the child is being engineered to say certain things. We go in with that assumption that they are actually lying unless we can prove otherwise … It is bad enough as an adult woman to disclose family violence. The way that you are treated through our system is bad enough. But it is catastrophic for a child.
6.108
Similarly, Domestic Violence Crisis Service advised that ‘children often feel that they do not have a say on custody matters … and decisions are not always made in their best interests … children can see themselves as pawns in this process’.
6.109
Ms Zoe Rathus AM similarly noted:
Children’s voices tend to not necessarily be well-heard by some family report writers … [I]t seems that when children say they don’t want to see their fathers they are often disbelieved and it is suggested that this is something the mother has put in their mind … If a child says they want to see their father, nobody ever wonders why that might be. There’s no questioning of that. A child who wants to see their father will immediately be believed and smiled at. This child is obeying the notions that have become so precious in family law around children maintaining relationships with both parents. If a child says, ‘I don't want to see dad,’ immediately suspicion is cast on the mother, and that is highly problematic. We’re not saying that mothers are always good; that’s not true either. We’re saying that assumptions can be drawn very quickly.
6.110
When determining the best interests of children, the Court must consider any views expressed by the child. The requirement that the Court must have regard to the child’s views is often satisfied by a report from a family consultant or court expert who has interviewed the child for this purpose. An independent children’s lawyer (ICL) may 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.
The role of independent children’s lawyers
6.111
In contrast to the role played by child representatives in children’s courts proceedings, an ICL is not the child’s legal representative and is not obliged to act on the child’s instructions. Rather, the role of the child’s representative in family law proceedings may be understood as comprising two distinct features:
assistance to the Court to make a decision in the bests interests of the child; and
providing a voice for the child in proceedings affecting them.
6.112
The Family Law Council noted in 2015, that providing a voice for the child does:
… not necessarily correlate with advocating for an outcome consistent with the child’s views. Rather, the ICL must act in relation to the proceedings on what he or she believes to be in the best interests of the child, having formed that view based on the evidence available.
6.113
Although some stakeholders were critical of the quality of some ICLs, others identified the impact that an appropriately trained ICL can make in individual cases. For example, The Deli Women and Children’s Centre referred to the improved safety outcomes that were reported by a client:
When we were appointed an excellent Independent Children’s Lawyer, she immediately tightened the consent orders, it immediately stopped some of the family violence … I am so grateful for this help.
6.114
Recognising the important role that ICLs can play in family law matters involving family violence, some participants also recommended greater funding for more ICLs available to the Court. The Law Council of Australia discussed the shortage of ICLs:
We went through a period in Victoria, for instance, where there was a quota applied by Victoria Legal Aid every month, and the quota of the number of ICLs that would be funded would be filled in the first week. So what you would do is strategically file your application at the beginning of the month so you would get an ICL if you needed one. That cannot be right. There were a number of really serious cases of family violence and child abuse … that happened to be filed at the end of the month, and they did not get an [ICL] … That has [now] been remedied [as] there was an injection of funding.
6.115
Where stakeholders were critical of the work conducted by ICLs, this was in large part due to insufficient training or a failure to comply with the Guidelines for Independent Children’s Lawyers. This is further discussed in Chapter 8.
6.116
However, other evidence was critical of the practice of some ICLs, most notably in the divergent practice regarding meeting with children to ascertain their views in developing recommendations to the Court as to the child’s best interests. Indeed, a recent AIFS study revealed that there is diversity of practice amongst ICL’s regarding meeting with children. Some lawyers doing this work were seen to regularly meet with and interview children. Others do not adopt this practice, preferring to rely only on sources of information such as family and expert reports.
Box 6.2: Independent children’s lawyers
The following is a selection of responses to the Committee’s questionnaire:
‘The Independent Children’s Lawyer didn’t even meet with the children until towards the end of the final hearing and also lied in court by telling them that he had, in fact, met with them prior to doing so’.
—Respondent from Queensland
‘An Independent Children’s Lawyer was assigned to my child. He said what he witnessed but they didn’t take anything into consideration’.
—Respondent from New South Wales
‘The process was long, but in the end through the reporting process and the gathering of evidence by reporters and the Independent Children’s Lawyer, ultimately final orders were made in the children’s best interests. The children were relocated to live with me and they are now happy and healthy’.
—Respondent from Victoria
‘My children’s voices were not heard. The [Independent] Children’s Lawyer never met them or spoke to them so how on earth could she represent them?’
—Respondent from Queensland
6.117
Bravehearts expressed concern where ICLs do not meet with children to ascertain their views, though also commented that ICLs may not be appropriately trained to determine a child’s best interests:
We have the wrong people making decisions about these children. They might be great lawyers but they are useless psychologists. They have no idea how children think or behave or respond yet they are making these decisions or offering this advice. [Children] need legal representation, but what they need more is psychology and they need an advocate and they need to be cared for.
6.118
Some of these proposals are explored further below.
Alternative mechanisms
6.119
A number of stakeholders supported the development of an independent child’s advocate that was not necessarily a legal representative. Jannawi Family Centre recommended the development of a child’s advocate, commenting such a role is ‘really important’ to support children through the process of responding to their trauma and as matters progress through the family law system:
Engaging children in that process with an independent person or somebody that can sit separate to that is really powerful because children can then voice their worries and their concerns … children are really important information givers in that regard as to how they experience each parent and how each parent meets their needs, is protective, who has got major responsibility, who has more power, who has control and those factors. But it takes quite a specialised skillset to do that.
6.120
Other stakeholders supported a combined model of both independent legal representation (that took instruction from the child) and child psychologists, advising that a combined model has worked positively in the United Kingdom and Canada.
6.121
For example, the ACT Human Rights Commission canvassed a pilot program in Canada that combines a therapeutic/clinical approach with legal representation in matters where family violence has been identified. The pilot involved a partnership approaching combining child assessment and therapeutic counselling with legal representation for a child/young person. It aimed to:
enhance the safety of children and young people (physical, psychological and emotional);
ensure children/young people’s evidence was heard in judicial decision-making;
better ensure the safety of children and young people; and
seek to minimise potential risks for further victimisation.
6.122
The Commission advocated that programs and models of practice that effectively integrate clinical expertise and therapeutic supports with legal representation ‘offer a way forward for the family court to better support and protect children’.
Committee comment
Prioritising children’s safety
6.123
The Committee notes that successive governments have sought to prioritise the safety of children when introducing amendments to the Family Law Act. Significantly however, independent evaluations of those amendments have found that they not achieved their desired outcome. Indeed, despite amendments in 2006 and again in 2012, the safety of children is not prioritised either because of:
the structural design of a presumption, an exception, and a subsequent requirement for the Court to consider equal time; and/or
the skills and expertise of the Court with respect to family violence.
6.124
The Committee makes further comment on the capacity of family law professionals, including the courts, in Chapter 8. The Committee is of the view that the structural design of Part VII of the Family Law Act is both confusing—leading to misinterpretations within the broader community and informal agreements or consent orders that would not be required by the Court—and fails to prioritise the safety of children in parenting matters involving family violence.
6.125
The Committee therefore recommends that Part VII of the Family Law Act be simplified, with consideration given to removing the presumption of equal shared parental responsibility. While the presumption does not apply in family violence matters, the Committee is also concerned that the presumption is improperly being applied to many cases involving family violence and that is giving rise to court orders and consent orders which put people effected by family violence, including children, at unacceptable risk.
6.126
The Committee recognises that this recommendation constitutes a significant departure from the current law. This must, however, be considered in tandem with the recommendations that allegations of family violence be determined at the earliest available opportunity in family law proceedings which is essential including for those against whom spurious or false allegations of family violence are made.
6.127
If allegations of family violence are determined very early in proceedings and if such allegations are found to be unsubstantiated, a Court is then able to make orders accordingly in the best interests of the child.
6.128
The Committee expects that this matter will be further considered by the Australian Law Reform Commission as part of its ongoing review of the family law system.
6.129
The Committee notes its previous recommendations that would deter false of spurious claims. Specifically, that appropriate risk assessments be conducted upon the filing of applications at the Court, and that the Family Law Act be amended to require early determination of family violence allegations in family law proceedings.
6.130
The Committee recommends that the Australian Law Reform Commission, as part of its current review of the family law system, develops proposed amendments to Part VII of the Family Law Act 1975 (Cth), and specifically, that it consider removing the presumption of equal shared parental responsibility.
A new child safety service attached to the Court
6.131
As discussed throughout this report, the risk of harm to families who have been affected by family violence is not static, and can evolve over time as the dynamics of family relationships evolve. Indeed, once a family departs the family law system, changing dynamics can increase the risk of harm to that affected family in a way that was not present or apparent whilst the matter was before the Court.
6.132
The Committee was advised that in previous years, a family consultant or Independent Children’s Lawyer would seek to monitor the safety of families for a period of up to 12 months and report back to the Court.
6.133
The Committee is of the view that more is required to ensure the ongoing safety of children following orders made by courts.
6.134
The Committee notes the Family Law Council’s recommendation for a family safety services modelled on the United Kingdom’s Children and Family Court Advisory and Support Service (CAFCASS). To some degree, the Council’s recommendation has been implemented, though in a limited form, under the Australian Government’s recent pilot program of Family Advocacy and Support Services (FASS).
6.135
The Committee considers that a child safety service should be attached to the Court, modelled on CAFCASS—representing an expansion of the existing FASS program. The service could exercise ongoing supervisory capacity and bring applications to the Court regarding safety concerns where an exercise of judicial power is required, or where matters need to be progressed with state and territory child protection agencies.
6.136
The Committee recommends that the Attorney‑General extends the Family Advocacy and Support Services pilot, subject to positive evaluation, to include a child safety service attached to the Family Court of Australia and the Federal Circuit Court of Australia, modelled on the United Kingdom’s Children and Family Court Advisory and Support Service. The expanded service, which may require additional infrastructure, should:
provide ongoing supervision of the safety of children following orders made by a court;
bring applications to the Court where the risk of a child’s safety is of concern and where an exercise of judicial power is required to ensure the child’s ongoing safety; and
refer matters to state and territory child protection agencies, where required.
Improving the information available to the Court
6.137
The provision of expert information is critical to the Court making informed decisions about the safety of children. It is also required at the earliest point in proceedings so that the procedures adopted by the Court and any interim orders properly account for the presence of family violence and/or child abuse.
6.138
Evidence to this inquiry indicates that the expert information submitted to the Court needs significant improvement in order to ensure the safety of children. Specifically, that the integration of child protection agencies’ investigations into family law proceedings, and improving the quality of family reports.
Integration of child protection agencies’ investigations
6.139
Both the ALRC/NSWLRC report in 2010 and the Family Law Council’s reports of 2015 and 2016 recommended significant amendments to provide for the better integration of child protection agencies’ investigations in family law proceedings.
6.140
As noted above, the ALRC/NSWLRC report recommended, among other things, that investigatory services in family law proceedings be provided by a new specialist section in state and territory child protection departments. The Family Law Council recommended legislative reform to allow for the publication of child protection investigation reports in family law proceedings, improved information sharing protocols between the two jurisdictions, and the co‑location of child protection agency staff in federal family court registries.
6.141
The Committee is of the view that a child safety service, as recommended above, could provide an appropriate liaison between the federal family courts and the state and territory child protection agencies. This is modelled on the CAFCASS program which includes a specialist screening unit that works with relevant child protection departments.
6.142
Further, the Committee notes that with respect to serious cases of child abuse, the Family Court has already established protocols with state and territory child protection agencies under the Magellan program. The Committee sees merit in extending this program to include all parenting matters involving family violence cases.
6.143
The Committee therefore recommends four substantial reforms to improve the information available to the Court. First, and as recommended by the Family Law Council, information sharing protocols must be established between the federal family courts and state and territory child protection agencies, accompanied by appropriate legislative amendments to permit the production of reports to the federal courts by child protection departments.
6.144
Second, the Committee recommends that the child safety service would be the appropriate liaison between the federal family courts and child protection agencies to ensure that appropriate information was provided at the earliest possible stage of proceedings.
6.145
Noting the clear and well-recognised links between federal family law and state-based child protection legislation, the Committee is of the view that more is required to ensure the seamless operation of these two concurrent systems. In particular, the Committee notes evidence from Bravehearts concerning a multidisciplinary panel whereby a child’s evidence provided to that panel could be used in different jurisdictional settings. The Committee is aware that such multidisciplinary panels operate in the United States of America where, for matters involving allegations of child abuse, an interview with a child is conducted by a forensic interviewer in one room with very discrete cameras. The interview is observed by police and child protection services in another room.
6.146
The Committee notes and expresses its support for such approaches to the investigation of child abuse, however notes that this is a matter for state and territory governments.
6.147
Lastly, the Committee identifies that that the Magellan program be extended to include all parenting matters where there are allegations of family violence.
6.148
The Committee recommends the Attorney‑General, through the Council of Australian Governments where necessary, works to improve the information available to courts exercising family law jurisdiction at the earliest possible point in proceedings by:
implementing the Family Law Council’s recommendations in its 2015 Families with complex needs and the intersection of the family law and child protection systems – Interim Report for information sharing protocols between the federal family courts and state and territory child protection departments;
establishing a child safety service attached to the Court that operates as a liaison between the federal family courts and child protection departments to ensure all relevant information is available to the Court at the earliest possible stage; and
consider the adoption of multi-disciplinary panels by state and territory governments for child abuse investigations which would assist the family law courts to determine whether family violence has occurred; and
works with the Family Court of Australia to extend the Magellan program to all parenting matters where there are allegations of family violence.
Family reports
6.149
The Committee is particularly concerned about the quality of family reports being submitted to the Court, and the exorbitant fees that some private family consultants charge for the development of reports.
6.150
Despite these significant criticisms of the capacity of family consultants and the quality of family reports, the Committee notes the general agreement among stakeholders that expert evidence is required to assist the Court in making decisions under the Family Law Act. For this reason, the Committee does not seek changes to preclude the admission of expert evidence by family consultants.
6.151
Rather, evidence to the inquiry demonstrates that the quality of reports and the expertise of family consultants must be improved and made more consistent. It is on those issues that the Committee concentrates its comments and recommendations.
6.152
The Committee notes the Australian Government recently announced $10.7 million for additional family consultants to be employed by the Family Court and the Federal Circuit Court. This was welcomed by a number of stakeholders in the Committee’s inquiry.
6.153
The Committee was persuaded by evidence that family reports done by ‘in‑house’ family consultants employed directly by the Court, are generally of better quality than those by private practitioners engaged under the regulations.
6.154
The Committee is therefore of the view that, to address both the quality and cost concerns identified in evidence, that the Australian Government should abolish private family consultants, and that family consultants must only be engaged and administered by the court itself. The Committee considers that direct engagement by the courts would enable the Court to oversee the quality of those reports, and enforce established standards for their production.
6.155
Further, the Committee recommends that an agreed fee schedule be developed and inserted into the Family Law Regulations 1984 to provide certainty for families who require family reports to be developed for the Court.
6.156
The Committee recommends the Attorney‑General pursues legislation and policy reform to abolish private family consultants, with family consultants to be only engaged and administered by the Court itself. Further, the Committee recommends the development of an agreed fee schedule to regulate the costs of family reports and other expert witnesses.
Incorporating children’s perspectives in court
6.157
The role of the legal representative for children in family law proceedings has evolved over time, and whilst a need for this role has been consistently affirmed, its precise nature has been the subject of multiple reviews and some criticism.
6.158
The Committee is of the view that it is critical for children’s perspectives to be provided to the Court, however, the Committee has not reached a view on what alternative mechanism might be appropriate. The Committee identifies that the Australian Law Reform Commission is best placed to make recommendations for the long‑term reform on this issue.
6.159
The Committee concludes that the Court must be better informed of children’s views, concerns and matters affecting their welfare, and recommends that the Australian Law Reform Commission in its ongoing review of the family law system, examines and propose alternative mechanisms that would ensure children’s perspectives are heard in court.