Family law system subject to divisions hurting all concerned
Family Court Justice Catherine Carew’s role was to decide which parent should care in future for the children.
The mum began using drugs at 10, had moved on to heroin by 15, and injected speed and ice, including during pregnancy. She also had a long history of mental illness, including psychosis, possible schizophrenia and borderline personality disorder.
The father was intellectually impaired and had shared a home with a convicted pedophile. He too had abused drugs for many years.
The Brisbane-based judge set out the children’s heartbreaking history of broken bones and burns, of ever-changing homes and poor school attendance in her judgment two months ago. Each parent posed an unacceptable risk of sexual, physical and psychological abuse and neglect to the children.
But after more than two years in the family law system, Carew was powerless to make the orders the children really needed: to be removed from their parents and taken into the care of the Queensland Department of Communities, Child Safety and Disability Services.
This is because the federal family law courts handle family law disputes, the state children’s courts are responsible for child welfare cases and, separately, local magistrates courts handle domestic violence matters.
Federal family law judges have no power to force state child welfare departments to intervene in specific cases if they do not wish to do so.
The Australian Law Reform Commission has been charged with examining the intersection of these systems — and “the desirability of ensuring that, so far as is possible, children’s matters arising from family separation be dealt with in the same proceedings”.
This is part of the first comprehensive review of the Family Law Act since it took effect in 1976.
Every year hundreds of the nation’s most vulnerable families bounce between the federal family law system and the state child protection and domestic violence systems in a situation lawyers say is an “absolute disgrace”.
With the courts and child welfare departments stretched to breaking point, the fragmentation causes a duplication of precious resources and results in frustrating delays for families in trauma.
At the end of the Brisbane-based trial, Carew had heard three days of evidence tested by cross-examination and had a detailed history of each party. She readily admitted the department was unlikely to “offer the same attention to detail” given its competing demands.
But she was powerless to resolve matters and could only ask that officials took on responsibility for the case.
“Unfortunately, in these proceedings, this court only has the option of making an order in favour of a parent,” she says in her judgment. “To ensure the protection of the children this court requires the co-operation and assistance of the department to find a permanent home for these children. I do not pretend this will be an easy task but it is nevertheless one I hope the department will undertake.”
Victoria Legal Aid’s executive director of family, youth and children’s law, Nicole Rich, says changes are needed to improve outcomes for vulnerable children. She says once a family enters one court, the system should be able to resolve as many of its issues as possible.
Analysis by VLA of its caseload two years ago revealed hundreds of families were bouncing between the family law courts, the children’s courts and local state courts. While 12,000 of its clients moved between two courts, more than 900 individuals received a grant of legal aid for all three problems across a five-year period — that is, a parenting dispute, a child protection matter and family violence issue.
The figures capture only those clients who qualify for legal aid and relate only to Victoria, so across Australia the numbers are likely to be considerably higher.
Rich says it can be a “very confusing” and “drawn out” process for families forced to move between separate court systems, which have different procedures, rules and standards of proof.
Often families are forced to start back at square one when their case shifts to a new court. Children may be forced to share their story with yet another expert report writer and in many cases a new lawyer will be appointed to represent their interests. Judges who have had no previous involvement with the case need to become aware of the issues.
Worse still, information can fall through the cracks, placing vulnerable families at further risk of harm. Judges in one court are not necessarily aware of previous orders made in relation to the same family in other courts unless the parties bring the orders to their attention.
Legal Aid NSW’s director of family law, Kylie Beckhouse, says her organisation has been involved for the past three years in a complex family law dispute relating to a child who has siblings from different parents. The judge had made at least two requests for the NSW Department of Family and Community Services to intervene in the family law litigation, but now FACS has decided to launch new proceedings in the separate state Children’s Court.
“I’m not questioning their casework decision,” Beckhouse says, “but it’s frustrating for lawyers and families involved in that system, that a court can hear and receive a lot of information and make determinations in relation to a family over a long period of time, to get to a point three years later where in effect for that family it will all start again.”
Judges also have vented their frustrations over these problems in recent years.
Family Court judge Robert Benjamin hit out two years ago at the “arcane division” between the state child welfare and federal family law systems for exposing “21st-century children to abuse and neglect”. This was after he was forced to allow a seven-year-old girl to live part time with her father, even though she had made multiple disclosures of sexual abuse by him, including that he hurt her by touching her “in the wrong places”. The Tasmanian Department of Human Services had failed to intervene in the case.
In his judgment, Benjamin called on state and commonwealth policymakers to reform the law, saying it was not beyond their wisdom “to bridge the artificial dichotomy between the state and territory child protection systems and the federal family law system”.
The ALRC review is just the latest in a long line of inquiries to examine these issues.
In 2015 the federal government’s Family Law Council examined the “intersection of the family law and child protection systems” and made several recommendations for change.
Respected University of Melbourne law professor Helen Rhoades, who led the 2015 inquiry, now has been charged with leading the latest ALRC review.
The report in 2015 highlighted the increasingly complex nature of family law cases, with violence alleged in more than 80 per cent of cases and many parents also battling substance abuse and mental illness — blurring the lines between the family law and child protection systems. Many of the “easy” cases are now resolved by mediation, leaving only the most difficult cases to be resolved by the courts.
Some lawyers say not much has changed on the ground since Rhoades’s previous report. However, Beckhouse says there has been a lot more focus on the problems.
Representatives from relevant commonwealth, state and territory agencies have been discussing ways to improve information sharing. Federal legislative changes are also due to be introduced to ensure judicial officers in the children’s courts can make family law orders — for example, to make parenting orders in favour of a relative who is able to care for a child.
Commonwealth, state and territory governments are due to launch on November 25 a national register of domestic violence orders to ensure victims can be protected across state boundaries. There are also discussions under way about the creation of a national database of child protection and family law orders so that judicial officers making decisions affecting children are at least aware of previous orders made in other courts.
“There is more engagement and understanding between child protection and family law courts about the need to work more constructively,” Beckhouse says. She says the federal law courts have been working with state child protection departments to ensure as much information is provided to the courts as possible.
Read More: The Australian
By: Nicola Berkovic
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