Family Court, Federal Circuit Court and Magellan List - advice

This advice provides additional information regarding child protection’s response to reports from the Family Court, Federal Circuit Court or matters on the Magellan List.

Introduction

See procedure Family Court, Federal Circuit Court and Magellan List for tasks that must be undertaken.

The Family Law Act 1975 provides a number of different ways in which the Family Court and the Federal Circuit Court can make a report to child protection in relation to a child that is subject to proceedings in that court.

It is important for child protection practitioners to familiarise themselves with the Family Court and Federal Circuit Court protocol.

Reports from the Family Court or Federal Circuit Court

The Family Law Act provides for the Family Court and the Federal Circuit Court to make reports to the department pursuant to the following sections:

Section 91B orders

Section 91B of the Family Law Act states that in proceedings relating to the welfare of a child, the Family Court and Federal Circuit Court may request the intervention of the state officer who is responsible for the administration in that state of child welfare laws (in Victoria, Department of Health and Human Services, child protection service). Upon receipt of this request child protection must investigate and make a decision about the most appropriate response to the Court’s request. Child protection may seek to intervene in the proceedings and if this occurs, will be a party to the proceedings and able to file affidavits, call witnesses, cross-examine witnesses, present expert evidence and appeal.

Section 67Z

Section 67Z of the Family Law Act provides that where an interested person in proceedings under the Family Law Act which can include an independent children’s lawyer alleges a child to whom those proceedings relate has been abused or is at risk of being abused then that person must file a notice in the respective court in the prescribed form (Form 4 Notice of Child Abuse, Family Violence or risk of Family Violence in the Family Court or a Notice of risk form in the Federal Circuit Court). The Court must then notify a prescribed child welfare authority (in Victoria, Department of Health and Human Services).

Amendments made to the Family Law Act by the Family Law Legislation Amendment (Family Violence and Other Measures) Act 2011, which came into effect on 7 June 2012, widened the definition of child abuse in the Family Law Act to encompass serious neglect as well as psychological harm, including when the harm is caused by the child experiencing family violence. In family law, abuse in relation to a child, means:

  1. an assault, including a sexual assault, of the child; or
  2. a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person; or
  3. causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence; or
  4. serious neglect of the child.

Section 67ZA

Section 67ZA of the Family Law Act provides that where the Registrar or Deputy Registrar of the Family Court of Australia or Family Court of Western Australia, a Registrar of the Federal Circuit Court , a family consultant, a family counsellor, a family dispute resolution practitioner or arbitrator, or an independent children's lawyer, in the course of carrying out their duties has reasonable grounds for suspecting that a child has been abused or is at risk of being abused, that person must, as soon as practicable, notify the Department of Health and Human Services of their suspicion and the basis for the suspicion. A report will be made to the child protection intake worker in the division where the child normally resides or, if appropriate, the After Hours Emergency Child Protection Services (AHCPES).

Responding to a report arising out of s 91B, s 67Z or s 67ZA

When responding to the court about a report arising out of s 91B, s 67Z or s 67ZA, child protection must do one of the following:

  • register the report and identify the reporter source as either the Family Court of Australia or the Federal Circuit Court of Australia
  • respond to the court in writing explaining the outcome of the report, for example:
    • no investigation
    • investigation substantiated or not substantiated, and that information is held which may be of interest to the court
    • initiate Children's Court proceedings
  • appear amicus curiae (friend of the court)
  • seek leave to become party to the proceedings.

Practitioners should discuss the decision to appear as 'friend of the court' or intervene in family law proceedings at the earliest possible time with their divisional solicitor, court officer or the CPLO to determine the most appropriate course of action. Endorsement by a team manager is required for child protection to appear as a friend of the court. The endorsement of the child protection operations manager is required for child protection to seek leave to become a party to the proceedings (i.e. to intervene).

In cases where child protection choose not to intervene, there is no avenue for appeal if a decision is made which is contrary to child protection's opinion about the outcome and child protection should not issue Children's Court proceedings unless new protective concerns arise.

Upon receiving a report from the Family Court or Federal Circuit Court, child protection must record this as a report in CRIS and make a determination regarding the classification of the report in the same manner as other reports. In determining how the department should respond to a report it may be necessary for child protection to seek access to orders or documents from the Family Court or Federal Circuit Court to determine whether the child may be in need of protection and if an investigation is necessary. Practitioners can seek access to parenting orders and court documents including family reports through the Court Registry using the prescribed form - Request to Family Court for information.

Where the Child Dispute Services of the Family Court and Federal Circuit Court has been involved and/or the child is separately represented, child protection intake should contact the relevant person prior to classifying the report. If it is unclear from the report that the Child Dispute Service has been involved this should be checked with the service by emailing the prescribed form to the relevant agency.

Further information about the procedures to be followed by the Family Court, the Federal Circuit Court and child protection when such a report is made is located in the protocol between the department and the Family Court and the Federal Circuit Court of Australia. See Family Court and Federal Circuit Court protocol.

Time lines following referral to child protection pursuant to s. 91B, s. 67Z or s. 67ZA

Wherever possible the Family Court and the Federal Circuit Court will set a return date which allows child protection sufficient time to adequately respond to the request.

Child protection will usually have a minimum of 21 days to prepare a response. If there is inadequate time to prepare a response in time for the next hearing date, child protection will notify the court as soon as practicable and prior to the date of the court hearing. However, child protection should comply with the request of return date.

Generally the Family Court and Federal Circuit Court will defer making a judgment on the case pending the department's response to the referral.

Magellan

Magellan is primarily a case management system in the Family Court of Australia designed to ensure that cases involving allegations of sexual abuse or serious physical abuse of a child are managed consistently by one judge, and that all relevant information is provided to the Court in a timely manner.

Magellan involves:

  • a focus on the children in the dispute
  • a judge leading the proceedings from the beginning
  • a team consisting of judges, registrars and family consultants at each family law registry managing the cases
  • imposition of strict timeframes (in most cases, within six months)
  • an early ‘front loading’ of resources including a designated court-ordered independent children’s lawyer for every child, funded by legal aid
  • the Court’s ability to order expert investigations and assessments from the respective state/territory child protection agency and/or a court family consultant.

Written information is sought from child protection in relation to whether it intends to intervene in the case, whether it has previously investigated these or other allegations, the views regarding the risk to the child and an explanation of these views, conclusions and any recommendations or other relevant information.

Child protection response to Magellan cases

If child protection receives a report for a child who is on the Magellan list, the child protection practitioner will:

  • discuss the report with the child protection divisional solicitor, court officer or CPLO to determine whether the department should intervene in the Family Court proceedings
  • make a decision regarding the investigation of the report in accordance with normal practice and the protocol
  • endeavour to provide written feedback to the Family Court within five weeks of the report in the event an investigation is commenced. Feedback to the Family Court is in the form of an expanded/augmented version of the standard letter, outlining the department's actions taken, views in relation of risk to the child and an explanation for the basis of this view
  • advise the Family Court if more time is required to complete the assessment. Liaison should occur with the child's legal representative and the Magellan Registrar.

Concurrent proceedings

There are several instances where families can be simultaneously involved in both the Family Court or Federal Circuit Court and the Children's Court. This situation can arise where:

  • child protection has issued proceedings in the Children’s Court and subsequently become aware that there are ongoing proceedings in the Family Court or Federal Circuit Court
  • child protection is aware proceedings are on foot before the Family Court or Federal Circuit Court, however, makes a decision that the most appropriate court to determine the issues relating to that child is the Children’s Court and issue proceedings in that court. The selection of which court is the most appropriate to determine the issues relating to the child is a difficult one and should be made on a case by case basis. Consultation with the divisional solicitor, court officer or CPLO is recommended to assist in the decision making process and
  • a parent or interested person makes an application to the Family Court or Federal Circuit Court for orders in relation to a child when there are proceedings before the Children’s Court.

Upon learning there are proceedings listed in both the Children’s Court and a Family Court, child protection practitioners must advise either the Family Court or the Federal Circuit Court in writing of the existence of Children’s Court orders and/or proceedings.

Section 69ZK of the Family Law Act (1975) prevents the Family Court or Federal Circuit Court from making an order (other than a child maintenance order) if the child is under the care of a person pursuant to an order of the CYFA unless the order is expressed to commence when the child ceases to be under that care or it is made in proceedings relating to the child where consent of the department has been obtained at the court commencement or continuation of those proceedings. If proceedings are on foot in both jurisdictions the Family Court and the Federal Circuit Court will often adjourn their proceedings pending a final determination being made in the Children’s Court.

Advice to the court

Following receipt of a report from the Family Court or the Federal Circuit Court a response to the Court is required prior to the next listed hearing date.

Where the report is classified as a protective intervention report and insufficient time has been allowed by the Court to complete an investigation, that is, less than 21 days, or the matter is complex and requires further assessment, a letter must be sent to the Family Court or Federal Circuit Court outlining the fact that the assessment is incomplete and indicating the date the information will be provided to the court.

It should be noted that unless the Department of Health and Human Services is a party to the proceedings it cannot formally seek an adjournment of the hearing. The Family Court and Federal Circuit Court have no obligation to adjourn a matter due to child protection being unable to provide a response to a report.

Where an investigation will not occur, the Family Court or Federal Circuit Court is to be advised of this in writing including the reasons for this decision.

Possible responses by child protection following an investigation

Child protection may respond to a report from the Family Court or Federal Circuit Court following an investigation in the following ways:

  • initiate a protection application
  • inform the Family Court or Federal Circuit Court that child protection does not intend to intervene, but has information in which the Court may be interested
  • inform the Family Court or Federal Circuit Court that child protection does not intend to take any further action.

Where immediate action is required to protect the child, child protection must determine if:

  • a protection application will be issued
  • a party will make an urgent application to the Family Court or Federal Circuit Court, for example, to vary contact arrangements from unsupervised to supervised contact and so on. The party making the application may subpoena the child protection practitioner to support the application.

It may be appropriate for child protection to consult the CPLO on the grounds for a protection application prior to its initiation. A protection application should occur where child protection believes there are grounds for an application and the case is more appropriately managed through the Children’s Court. A protection application should not generally be used as an avenue to resolve a dispute which can be appropriately resolved by the Family Court or Federal Circuit Court.

When a protection application is before the Children's Court, an order of the Family Court or Federal Circuit Court is suspended. The orders of the Family Court or Federal Circuit Court will remain in force unless varied or changed in the Family Court or Federal Circuit Court, or unless an order is made in the Children's Court.

Orders of the Family Court are not affected by child protection receiving or investigating a report.

Intervening in Family Court or Federal Circuit Court proceedings

Following an investigation, if child protection determines that a child is in need of protection, a decision needs to be made about whether to intervene in the proceedings or not. This should be guided by what is required to protect the child, and consequently which jurisdiction, that is, the Family Court or Federal Circuit Court or the Children's Court will best ensure the safety of the child. There are many factors for consideration, including:

  • How serious are the protective concerns?
  • What is the likelihood of abuse occurring?
  • Does the department have evidence that it wants to put to the Court?
  • Is there a child representative appointed to represent the child's best interests?

Direct intervention as a party to the proceedings should only occur where serious protective concerns are held which cannot be addressed by other means and only then after careful consideration and consultation with the CPLO or divisional solicitor. In all cases where the department intervenes in the proceedings they must be legally represented. Legal representation must be arranged by CPLO or divisional solicitor. In most cases it will not be necessary for the department to intervene and become a party to proceedings, but where there are protective concerns which may influence the outcome of the hearing, it may be appropriate to be subpoenaed by the party who the practitioner believes can adequately protect the child.

Compliance with Family Court and Federal Circuit Court orders

Parties to a Family Court or Federal Circuit Court order may sometimes allege that the other party is placing the child at 'unacceptable risk' and therefore believe that there are 'reasonable grounds' to not comply with the court order. In such situations a party may believe it necessary to either deny contact or refuse to return the child from contact as the case may be.

An order made by the Children's Court will take precedence over an order of the Family Court or Federal Circuit Court, to the extent that the orders are inconsistent. However, accepting a report or conducting an investigation does not, and child protection has no legal authority to, authorise or compel a person to fail to comply with an order made in the Family Court or the Federal Circuit Court.

The decision not to comply with a conditional Family Court or Federal Circuit Court order is a decision made entirely by the party. Contravention of orders affecting children under the Family Law Act can have serious consequences and requires a reasonable excuse for the contravention.

Section 70NAE of the Family Law Act defines what a reasonable excuse is. Practitioners should not provide legal advice to a person about their obligations under the Family Law Act or whether their situation falls within s 70NAE, however should encourage the party to seek independent legal advice.

Considerations for good practice

  • Even if the department is served with documents with very short timelines, the department should make best endeavours to comply with the request return date.
  • Child protection should make a note on CRIS of the time and day that the report was received and the date of compliance.
  • Always action court requests promptly as there is often only a short time allowed by the Court to process them.
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