15.4 Responding to allegations of harm to a child when there are current proceedings in the Family Court of Australia
Purpose
This procedure outlines the process for responding to allegations of harm to a child, where there are current proceedings in the Family Court of Australia (Family Court).
Authority
- Child Protection Act 1999
- Family Law Act 1975
Intake
When family court personnel suspect a child has been harmed or is at risk of harm, the Family Law Act 1975, section 67Z and 67ZA requires that the personnel report the concerns to the department by completion of a Form 4 - Notice of Child Abuse/Family Violence form.
Upon receipt of the child protection concerns, the intake CSO will screen the information to determine whether it reaches the threshold of a notification. As part of information gathering process the CSO will also:
- seek to confirm the status of the court proceedings, including any orders which have been made; and
- obtain as much background information as possible, either from the notifier, the court or, in the case of a notice of abuse under the Family Law Act 1975, section 67Z, from the legal representative of the party filing the notice.
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When a decision about the appropriate departmental response is made, the CSO will advise the Registrar/Deputy Registrar of the Family Court and/or the Federal Magistrates Court in writing:
- whether or not the information constitutes a notification according to departmental guidelines;
- whether there has been previous involvement with the family;
- in general terms, what action is proposed, if any; and
- if there is to be no intervention, whether the department has information in relation to the child which might assist the court in its deliberations.
Departmental intervention when a child is in need of protection
If, following the investigation and assessment, it is determined that the child is in need of protection, the department may respond in the following ways:
- commence an intervention with parental agreement case, including where required, the placement of the child subject to a child protection care agreement;
- commence child protection proceedings in the Childrens Court to protect the child; or
- after consultation with Court Services Unit, it may intervene and become a party to the Family Court proceedings pursuant to the Family Law Act 1975, section 92A.
Under the Family Law Act 1975, section 92A, certain persons, including a child welfare authority, are entitled to intervene in the proceedings where it is alleged that the child has been harmed or is at risk of being harmed.
The Family Court may request the intervention of the state child welfare authority under the Family Law Act 1975, section 91B. If the Family Court makes a 'section 91B' order, the department may respond by intervening in the proceedings and/or by producing the departmental file in response to a subpoena by the independent child lawyer.
The subpoena must be addressed to the chief executive of the department and is served on the Court Services Unit manager. On receipt of the subpoena, Court Services Unit will lodge the child's departmental file with the court, with the notifiers identifying information kept confidential. The department will flag the notifications, investigations and assessments and outcomes on the subpoenaed file.
In some cases the CSSC, in consultation with Court Services Unit, may wish to prepare a detailed report for the independent child lawyer in the following circumstances:
- when the department considers the most appropriate way to present the relevant information to the court is by way of a written report, for example, where there may be a number of files, but only a small amount of relevant information; or
- when the department has had significant involvement with the family and considers the preparation of a detailed report in the child's best interests.
If the department intervenes in the proceedings, it is taken to be a party to the proceedings, however in some circumstances it may be appropriate for the department to seek leave to withdraw from proceedings. Once the department becomes a party to the proceedings, it is bound by any orders the court may make. The department may be involved by either:
- becoming a party to the proceedings, where Crown Law will be instructed to act on behalf of the department; or
- a departmental officer attending to assist the court as a 'friend' of the court.
Whenever consideration is given to intervening in a proceeding, and prior to making a decision to do so, departmental staff must consult with the Court Services Unit manager, about the matter. Costs and other responsibilities may be incurred by the department intervening, including Crown Law representation.
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- Last updated
- 22 September 2008
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