Submission to Family Law Council

Your details

Name/organisation
(if you are providing a submission on behalf of an organisation, please provide the name of a contact person) / Ms Kay Benham
Executive Director, Policy and Learning
Western Australian Department for Child Protection and Family Support
Contact details
(one or all of the following: postal address, email address or phone number) / PO Box 6334
EAST PERTH WA 6892

(08) 9222 2516

Confidentiality

Submissions received may be published on the Family Law Council’s webpage, except where requests have been made to keep them confidential or where they relate to particular cases or personal information. Would you prefer this submission to remain confidential? NO

Your submission

Please note that your submission may address the questions in the call for submissions or a letter you received (simply provide the number of the question/s you are responding to), or provide any information you consider relevant to the Council’s terms of reference about families with complex needs and the intersection of the family law and child protection systems.

  1. What are the experiences of children and families who are involved in both child protection and family law proceedings? How might these experiences be improved?

As noted in their 2012 Report on the Intersection of the Family Law and Child Protection Jurisdictions in Western Australia (the Report), Hands and Williams[1] observed that children and families involved concurrently in child protection proceedings in the Children’s Court of Western Australia (Children’s Court) and family law proceedings in the Family Court of Western Australia (Family Court) may experience:

  • confusion regarding which court has decision making responsibility in relation to parental responsibility, care arrangements for the child and the child’s safety;
  • time delays as a result of possible multiple adjournments in both courts until appropriate care arrangements for the child are determined;
  • confusion due to differences in court documentation, terminology and case management approaches; and
  • unintended negative consequences arising from decisions about a child’s wellbeing being made in the absence of information about, or evidence associated with, current proceedings in respect of the same child in the other court.

Western Australia is in the unique position of having a State Family Court, the Family Court. Pursuant to section 36(6) of the Family Court Act 1997 (WA) (Family Court Act):

“Where a child the subject of proceedings appears to be a child in need of protection within the meaning of the Children and Community Services Act 2004 the Court has, in relation to the child, in addition to the powers conferred by this Act, all the powers of the Children’s Court”.

These powers of the Family Court are triggered when:

(a) the Chief Executive Officer (CEO) of the Department for Child Protection and Family Support (the Department) agrees to intervene in Family Court proceedings at the request of the Court pursuant to section 207(1) of the Family Court Act:

“In any proceedings under this Act that affect, or may affect, the welfare of a child, the court hearing the proceedings may request the CEO to intervene in the proceedings and the CEO may intervene in those proceedings on that request”; or

(b) if the CEO makes a decision to intervene in Family Court proceedings pursuant to section 207(2) of the Family Court Act:

“If a child the subject of proceedings under this Act appears to be a child in need of protection within the meaning of the Children and Community Services Act 2004 the CEO may intervene in any proceedings with respect to the child.”

The experiences of children and families involved in concurrent child protection and family law proceedings could be improved through the enactment of legislative changes enabling:

(a) the Children’s Court to make parenting orders where child protection proceedings are on foot to the extent determined by legislative change at both Commonwealth and State level;

(b) the transfer of proceedings between the Family Court and the Children’s Court and vice-versa at the request of the CEO of the Department; and

(c) Rules of Court to address administrative and procedural issues.

Additionally, ongoing changes to protocols and case management practices can be achieved by a combination of practice directions, policy development, Memoranda of Understanding and training of judicial officers and legal practitioners conducting matters in either or both of the family law and child protection legal systems.

In their Report, Hands and Williams[2] recommended that the experiences of the relatively small number of children and families involved in both child protection and family law proceedings at the same time could be improved by establishing a “joint partial concurrency model”. The model proposed is the subject of ongoing discussions between stakeholders and the courts in Western Australia, including the Department, Legal Aid Western Australia (Legal Aid WA), the Family Court and the Children’s Court.

In the Department’s view it would be counter-productive to require or mandate child protection agencies to file applications for protection orders in family courts simply because the child concerned is already the subject of parenting order proceedings before that court. The relatively small number of cases to which these circumstances apply is considered to be conducive to allowing the adoption of a case by case approach to allow the complexities and unique characteristics of each case, and family, to be taken into account when determining the best way to secure the safety and wellbeing of children.

  1. What problems do practitioners and services face in supporting clients who are involved in both child protection and family law proceedings? How might these problems be addressed?

The problems that arise for legal services and practitioners in relation to supporting clients who are involved in both child protection and family law proceedings tend to primarily relate to:

  • funding challenges (in so far as the same party may require legal representation in two separate courts in relation to two related but separate matters);
  • the inevitable duplication of resources and documentation associated with having proceedings on foot in relation to the same child or family in two separate courts; and
  • the sharing of expert reports and other relevant documents across two different jurisdictions.

The sharing of expert reports and other relevant documents has been effectively addressed in Western Australia recently, through the issuing of Practice Directions by both the Children’s Court and the Family Court. These Practice Directions clearly state that where proceedings in relation to the same child have commenced in one court, leave is not required to enable particular evidence and documents from that court to be used as evidence in the other court.

The Practice Directions also provide for the forwarding of subpoenaed documents to the Registry of the other court, upon request, where proceedings involving the same child are underway. Such arrangements were instituted by both courts in acknowledgement of the fact that a proper and efficient exchange of documentation between the Children’s Court and the Family Court is in the best interests of children and likely to facilitate the expeditious resolution of any concurrent child protection and family law proceedings. Copies of the Practice Directions can be found at Appendix A and Appendix B.

A Working Group, chaired by the Principal Registrar of the Family Court involving representatives from the Family Court, the Department and Legal Aid WA, and also meeting from time to time with a nominated Magistrate from the Children’s Court, has identified a number of procedural improvements to assist the intervention of the CEO in Family Court proceedings when appropriate. Ongoing work is being carried out to continue to streamline processes and it is anticipated that a pilot of a small number of cases will be trialled over the coming months where the CEO identifies that intervention in the Family Court proceedings may be the best and most appropriate approach to safeguard the best interests of the child or children involved.

  1. What are the possible benefits for families of enabling Children’s Courts to make parenting orders under Part VII of the Family Law Act? In what circumstances would this power be useful? What would be the likely challenges for practice that might be created by this change?

Enabling Children’s Courts to make parenting orders under Part VII of the Family Law Act is likely to be most useful in circumstances where child protection proceedings are underway and a parenting order is considered to be the most appropriate way to remedy a concern about the wellbeing of a child.

Section 46 of the Children and Community Services Act 2004 (WA) (CCS Act) contains a “no order” principle with regard to the legal analysis of the protection application:

“The Court must not, on a protection application, make a protection order in respect of a child unless the Court is satisfied that making the order would be better for the child than making no order at all.”

It may, however, after consideration of all relevant evidence, be appropriate for the judicial officer to make a parenting order either by consent or following a trial hearing in the Children’s Court, either to one or both of the parents or to an extended family member such as a grandparent.

In such circumstances it would be preferable and more expeditious if the Children’s Court had the ability to make a parenting order rather than having to instigate parenting order proceedings in the Family Court solely for this purpose. Benefits are likely to include more timely resolution of any family law dispute as well as avoidance of the need for children, families, practitioners and services to negotiate and support proceedings in two separate court systems, with their associated divergent processes and terminology.

Identification of the extent and limits of such additional powers is the subject of ongoing consultations and discussions among stakeholders and with the courts in Western Australia.

  1. What are the possible benefits for families of enabling the family courts to make Children’s Court orders? In what circumstances would this power be useful? What challenges for practice might be created by this change?

As mentioned previously, section 207 of the Family Court Act already enables the Department to intervene in Family Court proceedings, either upon the request of the Court or on the Department’s own initiative if it appears that the child who is the subject of the proceedings is a child in need of protection within the meaning of the CCS Act.

In conjunction with the Family Court, following discussions with stakeholders in Western Australia and consultation with the Chief Judge of the Family Court and the President of the Children’s Court, the Department is initiating a trial using the existing intervention provisions to seek protection orders in the Family Court in a limited number of appropriate cases, in preference to initiating protection proceedings in the Children’s Court. It is intended that the trial will help to identify and inform operational improvements and future legislative change.

Benefits for families in enabling the Family Court to make protection orders under the CCS Act include:

  • Avoiding the need for families and their lawyers (including independent children’s lawyers / children’s representatives) to appear in and deal with two courts when proceedings involving their children are underway in the Family Court, but the Department has protection concerns for the child/ren.
  • Families may experience less confusion about the decision-making process and fewer delays in the proceedings, because all relevant information and evidence would be lodged in the same court.
  • The judicial officer hearing the protection application would already be familiar with the case background, including the nature and extent of the Department’s involvement in the case prior to intervening with protection proceedings in the court.

While benefits may flow from taking this approach in some circumstances, there may be other cases where it is not advantageous or appropriate for protection applications to be lodged in the Family Court despite parenting order proceedings being underway. For example, there may be cases involving blended families where some but not all of the children are the subject of Family Court proceedings. Also, proceedings in the Family Court often address issues that are unrelated, or may sometimes be erroneously linked, to child protection concerns, and the consequent delays in when hearings can be listed, proceedings recommenced (after adjournment) and therefore proceedings finalised, can result in lengthy proceedings that are not in the best interests of the child.

One challenge that may arise from Family Court based protection proceedings, identified by Hands and Williams[3], relates to the confidentiality provisions that attach to the pre-hearing conferences in the Children’s Court,[4] that often precede protection proceedings. To address this concern, they suggest that family consultants rather than judicial officers be appointed as convenors of the pre-hearing conference. Otherwise, the confidentiality provisions would subsequently prevent the judicial officer who is managing proceedings in the Family Court from having access to the evidence from the family consultants which is available in family law proceedings from case assessment conferences. This requires further careful consideration by stakeholders taking into account the current practice that convenors are appointed by the President of the Children’s Court to convene Signs of Safety pre-hearing conferences which are generally held at Legal Aid WA’s premises in accordance with Practice Direction 1 of 2012. This Practice Direction is at Appendix C.

  1. Are there any legislative or practice changes that would help to minimise the duplication of reports involved when families move between the family courts and Children’s Courts?

In Western Australia, the Children’s Court and the Family Court recently instituted Practice Directions aimed at minimising the duplication of reports that necessarily occurred when families moved between proceedings in the family law and child protection jurisdictions.

The format and text of the Practice Directions are harmonised and thus the content of both documents is very similar. Both include a preamble noting that until recently (January 2015 for the Children’s Court and February 2015 for the Family Court) evidence filed in, or documents produced for proceedings of one court could not be used in the other court without leave first being granted by the court in which the documents were first produced. Both documents also state that “It is in the best interests of children for there to be a proper and efficient exchange of documentation” between the Children’s Court and Family Court in instances where proceedings in the family law and child protection jurisdictions are running concurrently.

Specifically, these Practice Directions, which can be found at Appendix A and Appendix B, provide for the following (see extracts below):

In the Family Court of Western Australia

Where protection order proceedings have been commenced in the Children’s Court involving the same child as proceedings in the Family Court, leave is not required from the Family Court for the following documents to be provided as evidence in the Children’s Court:

(a) affidavits;

(b) reports of Single Expert witnesses; and

(c) family reports and other documents prepared by a Family Consultant that form part of the record of the Family Court.

In the Children’s Court of Western Australia

Where parenting order proceedings or protection order proceedings have been commenced in the Family Court and involve the same child as in protection proceedings in the Children’s Court, the leave of the Children’s Court is taken as given for the following documentation filed with, or received into evidence in, the Children’s Court, namely:

(a) affidavits;

(b) reports under s 139 of the Children and Community Services Act 2004, and if not written, then a record of it as otherwise directed;

(c) documents; and

(d) proposals under s 143 in the CCS Act,

to be provided as evidence in the proceedings in the FCWA.

As noted earlier, the Practice Directions also provide for the provision of subpoenas and subpoenaed documents to the registry of the other courts upon request and for the respondent to the subpoena to be informed accordingly.

Significant benefits have been derived from the issuing of these Practice Directions in Western Australia. Such a practice could be uniformly adopted nationally to assist in overcoming some of the time consuming processes and duplication that can be associated with related proceedings occurring concurrently across the family law and child protection jurisdictions.

  1. How could the sharing of information and collaborative relationships between the family courts and child protection agencies be improved?

Improved information sharing between family courts and child protection agencies could be achieved by adopting a multi-pronged approach comprising a number of formal and informal mechanisms.