While the Children’s Court and the Family Court are separate jurisdictions that deal with different types of proceedings, there are some situations where they overlap. While the Children’s Court of Western Australia deals with child protection proceedings, the Family Court deals with family law matters including parenting orders. In some situations, the Department of Child Protection will seek a Protection Order in relation to children where at the same time there are legal proceedings on foot between the parents as to who should have the care of the children. In these situations, it may be unclear where the separate proceedings sit in relation to each other.
What happens when the Department intervenes when a parenting matter is already on foot?
When the Department of Child Protection investigates the circumstances of a child and considers that the child is in need of protection, it commences an application for a Protection Order in the Children’s Court of Western Australia pursuant to the Children and Community Services Act 2004.
The Family Law Act (Cth) 1975 states that in case of inconsistency of law between these two Court, the state law prevails. This means that if there are already parenting proceedings underway in the Family Court in respect of the child, these proceedings will be placed on hold until the Child Protection matter is finalised. Once the Department is satisfied that there are no ongoing protection concerns regarding the child, the proceedings in the Children’s Court are discontinued. If there remains a dispute over the care arrangements for the child, this can be dealt with in the Family Court.
What is the difference between child protection orders and parenting orders?
Both the Children’s Court of Western Australia and the Family Court deal with issues of who a child should live with, who a child should spend time with and who should have parental responsibility for the child. While the Family Court is governed by federal law which regulates private legal issues between different members of a family, the Children’s Court of Western Australia is governed by state law and deals with the powers of the Department of Child Protection to intervene in a family situation when a child is not receiving adequate care or protection. The Children’s Court also regulates adoptions.
The Family Court does not have investigative powers and in cases where there are allegations of abuse or neglect, relies on the Department to investigate. Where a matter commences in the Family Court and it subsequently comes to light that child protection concerns exist, the judge may make an order inviting the Department to intervene.
When investigating a child protection notification, the Department will consider whether the children are at risk of suffering harm from which the parents are unable or unwilling to protect them. Evidence from child protection proceedings in the Children’s Court may later be used in parenting disputes in the Family Court. This is particularly likely to be relevant in cases where there are ongoing concerns about a parent’s capacity to care and protect the children. The Family Court can also access information in relation to any Departmental dealings with either of the parents in the past or present.
Criticisms of the system
The question of how the Family Court is empowered to deal with the situation where neither parent is a viable carer for children has recently arisen. It is unclear whether the Family Court can make orders in favour of the Department of Child Protection without the parents’ consent. This question has been referred to the Australian Law Reform Commission for investigation.
Critics of how the courts deal with the care of children point out that the state welfare laws focus on whether there are current and present protection concerns and not on what the desirable living arrangements for the child are in the long term. This means that the Family Court has to step out when protection concerns are raised, possibly to become involved again at a later stage.
The Family Court has also been observed to have a different threshold of protection concerns than the Department, meaning that while a judge may consider that the Department’s intervention is warranted, the Department may decide that the case does not meet its threshold for intervention due to its resource constraints.
It has also been suggested that the two courts provide certain parents with an opportunity to engage in ‘forum shopping’. The overlapping jurisdictions also mean that certain parents have to articulate their position and tell their story on multiple occasions which can compound the impact of any trauma that they have suffered.
If you unsure how the above applies to you, please contact Go To Court lawyers for a free assessment of your situation.
By Romana Simic, Senior Associate