Memorandum of Understanding with the Family Court

This advice provides an overview of the 1995 Memorandum of Understanding between the department and the Family Court and Federal Circuit Court.

Introduction

A Memorandum of Understanding was signed in 1995 by the Magistrates Court, Family Court of Australia and the then Department of Human Services, Victoria. The Memorandum is based on a number of cases in both Victoria and interstate where families had been the subject of proceedings in the Family Court at the same time as intervention from a state welfare authority. This prompted concerns about the overlap of federal and state jurisdictions and the role of state welfare authorities in such proceedings.

Refer to the Protocol with the Family Court and Federal Circuit Court for further information.

Principles and agreement

The central principles underpinning this agreement are:

  • a recognition of the specialised nature and separate jurisdictions of the Family Court and children's court
  • a recognition that the Department of Health and Human Services has statutory responsibilities that may involve, or result in the involvement of, both the Family Court and the children's court
  • a recognition that multiple hearings, over prolonged periods in separate jurisdictions can be harmful to the child and should where possible be minimised
  • a recognition that parents have a right to have their disputes resolved expeditiously, efficiently and where possible within a single jurisdiction
  • a recognition that the children's court should not be utilised as a de facto court of appeal from the Family Court.

It is agreed that:

  1. The Department of Health and Human Services reserves the right to choose the jurisdiction in which protective concerns in relation to children are determined, guided by the principles above. 
  2. If the Department of Health and Human Services forms the view that the Family Court is the appropriate jurisdiction to decide matters of a protective nature, it may choose not to become a party to the proceedings but to give evidence in support of one or another party, or the child's separate representative, if appointed. This decision will be based on the level of concern, the preparedness of the other parties' legal representative to call the department as a witness. The department will be required to accept the orders of the Family Court without the avenue of appeal. 
  3. If the Department of Health and Human Services has serious concerns and is not satisfied that its evidence will be fully presented or wishes to raise jurisdictional arguments, it may apply to be made a party to the proceedings. 
  4. Provided no new protective concerns emerge during the proceedings to suggest that the child is at further risk, the department will not apply to change the jurisdiction. 
  5. During the course of proceedings in the Family Court, if, as a result of new information, the Department of Health and Human Services assessed that the child is at significant risk and that none of the parties will protect the child, proceedings will be initiated through the children's court. 
  6. Where the department decides to initiate proceedings through the children's court, it will appear in person before the Family Court at the earliest opportunity to inform the court of its intentions. 
  7. If, as a party to the proceedings, the Department of Health and Human Services is dissatisfied with the outcome of the Family Court proceedings and considers the child to be at significant continuing risk, an appeal will be initiated through the Family Court. 
  8. Provided no new protective concerns arise following Family Court proceedings, the Department of Health and Human Services will not commence further proceedings in the children's court, regardless of judgement. 
  9. If following the conclusion of Family Court proceedings new protective concerns are raised about the safety or wellbeing of a child, the department will determine whether the concerns are best addressed through protection application proceedings in the children's court or initiation of further proceedings through the Family Court. This decision will be based on the length of time since the Family Court order was made, whether or not any family members are able to adequately care for the child and the level of the department's supervision required.
  10. Where there have been previous proceedings in the Family Court or proceedings are current in the Family Court, the department will ensure, to the extent that it is aware, that this information is communicated clearly to the children's court in any report submitted to that jurisdiction by the department. 
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