15.1 Working with the Family Court of Australia
Purpose
This procedure outlines the interface between the department and the Family Court of Australia and outlines respective roles and responsibilities.
The jurisdiction of the Family Court of Australia
The Family Court of Australia (the Family Court) is a federal (Commonwealth) court established under the Family Law Act 1975. It deals with a range of matters arising out of relationship breakdowns, including divorce, property settlement and the care of children of a relationship.
The Family Court has registries in Brisbane and Townsville and sub-registries in Rockhampton and Cairns.
The Family Court's jurisdiction in relation to children includes the power to make parenting orders, which may include one or more of the following:
- the person or persons with whom a child is to live (Family Law Act 1975, section 64B(2)(a));
- the time the child is to spend with another person or other persons (Family Law Act 1975, section 64B(2)(b));
- the allocation of parental responsibility for a child for making daily and long-term decisions about a child's care, welfare and development (Family Law Act 1975, section 64B(2)(c));
- if two or more persons are to share parental responsibility for a child, the form of consultations those persons are to have with one another about decisions to be made in the exercise of that responsibility (Family Law Act 1975, section 64B(2)(d));
- the communication a child is to have with another person or other persons (Family Law Act 1975, section 64B(2)(e)); and
- maintenance of a child (Family Law Act 1975, section 64B(2)(f)).
The Family Court also has a broad welfare jurisdiction to deal with special matters such as consent to medical treatment and certain powers under international conventions.
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The Federal Magistrates Service and state Magistrates Courts also have jurisdiction under the Family Law Act 1975 to deal with children's matters. The Federal Magistrates Court, which shares registries with the Family Court in Brisbane and Townsville, can deal with contested children's matters provided the consent of all parties has been provided. For the purpose of this procedure, the Family Court also refers to the Federal Magistrates Service. The state Magistrates Court has jurisdiction to make consent orders only.
The roles of the Family Court and the Department of Child Safety
The role of the Family Court is to determine disputes between separated parents and other persons concerned with the child's welfare or about the care of the child. In deciding whether to make a particular parenting order, the Family Court must regard the best interests of the child as the paramount consideration.
If there is suspected harm or risk of harm to a child, the department is the mandated authority to investigate the allegations. The Family Court does not have the expertise, role or resources to perform this function. Whether or not there are proceedings in the Family Court, the department has the lead responsibility to ensure the child's safety and need for protection. A child of separated parents has the same right to protection and to receive departmental services, as do other children.
The Family Law Act 1975 recognises the child protection role of the state in the following ways:
- Family Court personnel are mandated to report cases of suspected harm and risk of harm, and family violence, to the state welfare authority (Family Law Act 1975, section 67Z, 67ZA);
- the Family Court cannot make a parenting order in relation to a child in the care of a person under the Child Protection Act 1999, unless the order is to come into effect when the child ceases to be in that care or the chief executive consents to the application proceeding in the Family Court (Family Law Act 1975, section 69ZK(1));
- nothing in the Family Law Act 1975 or any order under that Act affects:
- the jurisdiction of the Childrens Court to make an order by which a child is placed in the care of a person under the Child Protection Act 1999; or
- the power of the department under the Child Protection Act 1999 to take any action by which a child is placed in the care of a person under the Act; or
- the operation of the Child Protection Act 1999 in relation to a child (section 69ZK(2));
- the department has the right to intervene in Family Court proceedings and deal with child protection issues in the Family Court if it chooses (Family Law Act 1975, section 92A);
- the Family Court may request the department to intervene in the proceedings (Family Law Act 1975, section 91B); and
- under the Family Law Rules 2004, rule 6.02(2), the chief executive of the department must be served as a respondent to any application relating to a child for whom a care agreement, assessment order or child protection order under the Child Protection Act 1999 is in place. These documents must be served on the department via the manager of the Court Services Unit.
Decisions about which court should hear proceedings
It is generally not in the interests of a child or their family, that there are proceedings both in the Family Court and the Childrens Court. When deciding in which court the matter should most appropriately proceed, the nature of the individual case will determine the appropriate jurisdiction and consideration should be given to matters such as:
- which court is likely to provide the quickest and most effective solution to secure the safety and well-being of the child;
- is the child's need for protection likely to be established and/or can the child's well-being be more effectively assured through parenting orders;
- which court has jurisdiction to make the orders that will be supported by the participants in the case conference;
- can the protective concerns be alleviated by a change in parenting orders; and
- is there an appropriate parent or carer able and willing to lodge a Family Law Act 1975 application to establish or vary parenting orders.
The central principles relevant to the consideration of the matters referred to above are:
- a recognition of the specialised nature and separate jurisdictions of the Family Court and Childrens Court;
- a recognition that multiple hearings over a prolonged period of time can be harmful to the child and should be minimised where possible;
- a recognition that parents have a right to have their disputes resolved expeditiously, efficiently and where possible within a single jurisdiction; and
- a recognition that the Childrens Court should not be used as a de facto court of appeal from the Family Court.
The department, as the agency with statutory responsibility for child protection, decides the jurisdiction in which the protective concerns should be determined, guided by the above principles.
Court Services Unit must be consulted about the most appropriate forum for determination of matters in each case.
Information exchange between the Department of Child Safety and the Family Court of Australia
The principles that guide the exchange of information between the department and the Family Court are as follows:
- information may only be exchanged between the Family Court and the department where law permits the disclosure of the information;
- the paramount consideration of the best interests of the child and statutory requirements of privacy and the security of personal information underpin any exchange of information between the Family Court and the department;
- the well-being and protection of children at risk is better secured by a free flow of information between those concerned with the child and the family;
- courts are in a better position to make appropriate orders if they are fully aware of proceedings in other jurisdictions; and
- information exchange will be limited to only that which is relevant to the respective roles of each service, and the best interests of the child or children involved in the particular matter.
A protocol to guide the exchange of information between the department and the court is currently in draft format and is to be reviewed.
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- Last updated
- 30 June 2007
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