Jenny Wong, CSO Senior Solicitor
Summary of a seminar/paper dated 24 June 2015
In the Children's Court of NSW, under the Children and Young Persons (Care and Protection) Act 1998 (NSW) the Department of Family and Community Services ("FaCS") has a clear role to play in the proceedings.
The role of FaCS when intervening in family law proceedings under the Family Law Act 1975 (Cth) ("FLA"), is not as straight forward, often limited to certain issues or discreet areas and the procedure for intervention also varies, depending on whether the proceedings are heard in the Family Court of Australia ("FCA") or in the Federal Circuit Court of Australia ("FCC").
The law treats parents as responsible for their children. There are circumstances when the legal starting point, that parents have parental responsibilities, needs to be changed. The parents might die, or become incapable; they might fail to care for the child properly; they might separate and be unable to agree who should have the child.
The law provides courts with the power to change parental responsibility for a child and make specific orders in the best interests of a child, including orders about who holds that parental responsibility for the child, with whom the child should live, and the child's contact or time spent with their parents or other important people in the child's life. There are generally two different ways in which this can be done: by family courts operating under the FLA, and in NSW, by FaCS and the Children's Court of NSW operating under the Children and Young Persons (Care and Protection) Act 1998 (NSW) and other related child protection legislation and regulations.
The State intervenes in the lives of families to protect children who are at risk from abuse or neglect, whether or not they are in the care of their parents. It is the fact that the child's need for care and protection is not being adequately met that provides the rationale for this intervention.
The Children's Court make orders, however, only if it is satisfied that the child is in need of care and protection, having regard to the grounds set out in the legislation. It is an important feature of the system that the Children's Court cannot make orders unless it is satisfied that this threshold test has been met. Once the threshold is met, the Children's Court can make a range of orders.
By contrast the family law system has no investigatory body corresponding to the State child protection departments. It consists of courts operating under the FLA under a system designed to deal with private disputes. The family law system is engaged when an applicant seeks an order. In dealing with the application the Court acts on the evidence tendered by the parties having no investigative facility of its own. There is no equivalent threshold test in the family law system: once an application is made seeking parenting orders, it must be determined on the basis of the child's best interests.
An application for a parenting order may be made by either or both of the child's parents; or the child; or a grandparent of the child; or "any other person concerned with the care, welfare or development of the child". Although there are circumstances in which the Secretary may apply under this provision, in practice FaCS often gets involved in family law proceedings by intervening in the proceedings.
Under s. 67ZC of the FLA in addition to having the jurisdiction in relation to children, the Court also has jurisdiction to make orders relating to the welfare of children (with regard to the best interests of the child as the paramount consideration).
Section 92A of the FLA provides that FaCS are entitled to intervene in proceedings in which it has been alleged that a child has been abused or is at risk of abuse.
Section 91B of the FLA provides that the Family Court can make an order requesting FaCS to intervene. In that event FaCS is entitled but not compelled to intervene; if it does so, the Secretary becomes a party to the proceedings, and has 'all the rights, duties and liabilities of a party', except a liability for costs.
In New South Wales there are two separate documents, a Memorandum of Understanding and a Protocol, between the family courts and FaCS.
The Memorandums of Understanding were established "to facilitate contact (between FaCS and the family courts) in order to ensure that a child's or young person's needs for protection are met".
The Protocols, which are to be read in conjunction with the corresponding Memorandum of Understanding, state that they have been established 'to facilitate co-operation and sharing of information and to clarify procedures (between the Family Court and FaCS) in order to meet children's need for protection".
New South Wales also has a Memorandum of Understanding between FaCS and the Legal Aid Commission of NSW, relating to Independent Children's Lawyers. It recognises that the Independent Children's lawyer will require information from FaCS and be in communication with FaCS. It also refers to the "one court principle", and says that FaCS "will wherever possible and appropriate, seek to intervene in any current family law proceedings rather than commence fresh proceedings in the State Children's Court".