Child protection and family law

The latest material added to the Australian Institute of Family Studies library database is displayed, up to a maximum of 30 items. Where available online, a link to the document is provided. Many items can be borrowed from the Institute's library via the Interlibrary loan system.

See more resources on Child protection and family law in the AIFS library catalogue

Submission to the Joint Select Committee on Australia's Family Law System

Australian Institute of Family Studies, Australia. Parliament. Joint Select Committee on Australia's Family Law System
Melbourne, Vic. : Australian Institute of Family Studies, January 2020.
This is the submission from the Australian Institute of Family Studies to the Joint Select Committee on Australia's Family Law System. The Committee was established in 2019 to investigate a range of issues associated with the appropriateness, effectiveness and impacts of the family law system, following on from the 2018 review. This submission highlights findings from the Institute's work that relate to the Committee's terms of reference, including: interaction and information-sharing between systems and jurisdictions, court powers in relation to the provision of evidence, court reform: capacity to deal with complex issues, legal costs in property matters, family law support services and family dispute resolution (FDR), family law impacts on children and families, grandparent carers, improving performance of family law system professionals, family law and child support systems: interactions, and pre-nuptial agreements. Together, the work of the Institute demonstrates the need for a system that: is trauma-informed and child-inclusive, provides effective client support and dispute resolution services, and is delivered by family law professionals with the skills to secure the safety and best interests of children and their families.

Annual report 2018-2019

Australia. Family Court
Canberra, ACT : Family Court of Australia, 2019.
This annual report presents information on the Family Court of Australia's activities and performance for the year 2018/2019. It includes financial statements and information on organisational structure and governance, and presents statistics on client groups, divorce applications, parenting and financial cases, clearance rates, time taken, appeals, representation of litigants, cases with a notice of child abuse or family violence, and Magellan cases. In this period, 2,395 applications for final orders were finalised, with 93% finalised within 12 months. Significant matters include the appointment of Will Alstergren as Chief Justice of both the Family Court and the Federal Circuit Court, the appointment of a working group to harmonise the two sets court rules, the release of the Australian Law Reform Commission's review of the family law system, and new training for judges about family violence.

Parental alienation, coaching and the best interests of the child : allegations of child sexual abuse in the Family Court of Australia.

Death J, Ferguson C and Burgess K
Child Abuse and Neglect v. 94 Aug 2019: Article 104045
This article investigates whether claims of parental alienation syndrome are being used in Australia as a counter allegations of child sexual abuse in family court cases. It reviews 357 court judgements from between 2010 and 2015 to explore themes of parental alienation, parent coaching, mothers as manipulative, mothers as mentally ill, and the best interest of the child.

Recommendations to achieve best practice in the child protection and family justice systems: interim report (June 2019)

Great Britain. High Court of Justice. Family Division. Public Law Working Group
London : High Court of Justice, 2019.
In 2018 in the United Kingdom, a working group was established to look at practices and processes in the operation of the child protection and family justice systems. This interim report presents draft recommendations and best practice guidance, and invites feedback. The working group is investigating: measures which may be taken to divert those public law applications made by local authorities to the Family Court which could be 'stepped down'; the issue of the increase in short-notice applications being made by local authorities when issuing applications for public law orders; when and how engagement with children can be made in the most effective way; restructuring case management; and delivering enhanced benefits and outcomes for children. To complete this work, six sub-groups were established, addressing: local authority decision-making, pre-proceedings and the PLO, the application, case management, special guardianship, and s20/s76 accommodation. The working group was established by the President of the Family Division of the High Court and is led by Mr Justice Keehan.

Assessing allegations of child sex abuse in custody disputes.

Schindeler E
Children Australia v. 44 no. 1 Mar 2019: 5-12
Risk assessments by expert witnesses appointed by the Family Court of Australia (FCA), and as informed by findings of any investigations by police and child protection agencies, play a critical role in the adjudication of custody disputes involving allegations of child sex abuse. This study focuses on the contribution made by these independent advisors as documented in the FCA trial transcripts of a sample of 62 such cases in the period 2012-2016. Analysis reveals that those responsible for assessing risk shared a concern for an emerging pattern of applicant responsibility for systems abuse, in conjunction with emotional abuse, as a significant child protection issue. It also raises issues for the Court when there are multiple risk assessments coming from experts who bring different disciplinary and organisational perspectives. As an exploratory study, the implications of these findings need to be viewed through the lens of protecting the best interests of the child.

Discounting the mother-child relationship in parenting orders : a snapshot in time.

Easteal P, Prest A and Thornton F
Australian Journal of Family Law v. 32 no. 3 Feb 2019: 221-248
Although family law has a presumption of shared parenting, social norms in Australia prioritise the mother-child relationship and many child custody arrangements still tend to be based on more time with mothers. This article explores the exceptions - cases where mothers are ordered to spend no or minimal time with their child - or, in other words, where the legal system finds against the mother-child relationship. A sample of 50 cases from the Family Court and the Federal Circuit Court were reviewed to investigate the nature of the mother-child relationship in such cases and what factors cause legal professionals to decide that a woman is not a good mother. All of the judgments in these cases were attributed to the need to protect the child from physical or emotional harm, due to direct abuse or incapacity, but in many cases this was considered due to an inability to enable a meaningful father-child relationship.

Allegations of child sexual abuse in parenting disputes : an examination of judicial determinations in the Family Court of Australia.

Ferguson C, Wright S, Death J, Burgess K and Malouff J
Journal of Child Custody v. 15 no. 2 2018: 93-115
This article investigates the outcomes of family court cases involving allegations of child sexual abuse. 156 judgments of the Family Court of Australia, from 2013-2015, were assessed to identify how often allegations are substantiated, suspected to be true, or disbelieved, and the characteristics of cases such as the type of evidence presented, who made the allegation, and prior child protection involvement. The analysis found that a low rate of substantiation - lower than rates found in other studies - and that allegations made by mothers against fathers were disproportionately unsubstantiated.

Information relating to Australia's joint fifth and sixth report under the Convention on the Rights of the Child, second report on the Optional Protocol on the sale of children, child prostitution and child pornography, and second report on the Optional Protocol on the involvement of children in armed conflict: submission to the Committee on the Rights of the Child

Australian Human Rights Commission, National Children's Commissioner (Australia), United Nations. Committee on the Rights of the Child
Sydney, NSW : Australian Human Rights Commission, 2018.
In this report, the Australian Human Rights Commission presents 60 recommendations to the Australian Government on matters of children's rights and the Convention on the Rights of the Child. A wide range of issues are addressed, including civil rights and freedoms, human rights legislation, data collection, children detained in adult prisons, the age of criminal responsibility, violence against children, forced marriage and female genital mutilation, race and sex discrimination, family environment and alternative care, disability, basic health and welfare, education, leisure and cultural activities, surrogacy and recognition of legal parentage, cyberbullying and image based abuse, and special protection measures. Though most Australian children grow up in safe and healthy environments and do well, there are some groups of children whose rights are not adequately protected, impacting upon their wellbeing and ability to thrive. Recommendations include that the Government develops a National Plan for Child Wellbeing, amends the Family Law Act to require that children are provided with an opportunity to express their views, amends the Family Law Act to clarify the definition of parent for children born from surrogacy arrangements, explicitly prohibits the use of isolation and force as punishment in juvenile justice facilities, and facilitates a national model for working with children checks.

2017-18 annual report

Queensland. Domestic and Family Violence Death Review and Advisory Board
Brisbane, Qld. : Domestic and Family Violence Death Review and Advisory Board, 2018.
The Domestic and Family Violence Death Review and Advisory Board is one mechanism by which the Queensland Government aims to to prevent domestic and family violence deaths. It will undertake systemic reviews of domestic and family violence deaths, identify common systemic failures, gaps or issues, and make recommendations to improve systems and practices. This annual report outlines the Board's work in its second year of operation in the 2017-2018 financial year. It presents findings from a statistical analysis of the deaths of the 294 children and adults killed by family members or intimate partners in Queensland since 2006, as well in-depth reviews of the 30 deaths which were reviewed by the Board in this reporting year. The analyses help identify the breadth and scope of the problem, the events leading up to the deaths, the presence of any risk indicators, prior service system contact, and opportunities to intervene, and potentially prevent, these deaths. Issues raised include the characteristic of coercive controlling violence, post-separation violence and 'contact abuse', abuse of family law processes and custody to gain advantage, and prior contact with health and justice services.

Children and Young Persons (Care and Protection) Amendment Bill 2018; National Disability Insurance Scheme (Worker Checks) Bill 2018.

New South Wales. Parliament. Legislation Review Committee
Legislation review digest. No. 64 of 56. Sydney, N.S.W. : Legislation Review Committee, 2018: 7-15
This digest reviews bills and regulations in New South Wales brought before the Legislation Review Committee for scrutiny. This chapter presents the Committee's findings relating to a new bill to amend the Children and Young Persons (Care and Protection) Act 1998. The bill aims to implement improvements to the child protection system resulting from proposals in the discussion paper 'Shaping a Better Child Protection System'. However, the Committee raises concerns about the use of mandated - and arguably arbitrary - timeframes for attempting restoration or awarding adoption, as well as concerns about consent and what the courts must consider in their deliberations. The bill will be considered by Parliament together with another bill regarding the screening of workers in the National Disability Insurance Scheme, so this chapter also discusses both of these bills.

Annual report 2017-2018

Australia. Family Court
Canberra, ACT : Family Court of Australia, 2018.
This annual report presents information on the Family Court of Australia's activities and performance for the year 2017/2018. It includes financial statements and information on organisational structure and governance, and presents statistics on client groups, divorce applications, parenting and financial cases, clearance rates, time taken, appeals, representation of litigants, cases with a notice of child abuse or family violence, and Magellan cases. In this period, 20,436 applications were filed and 75% of judgments were delivered within 3 months. Two upcoming reforms will shape the future of the Family Court: in 2017, the Australian Law Reform Commission began a review of the family law system, and in 2018, the Attorney-General announced the Government's intention to reform the structure of the federal courts through a merger.

Out of the mouths of babes - information gathered from children in family law proceedings.

Beveridge A, Papaleo V and Parker A
Australian Family Lawyer v. 27 no. 1 Jul 2018: 31-39
Child witnesses pose a difficult problem for the legal system, which is fundamentally designed to test the evidence of adults not children. This article considers current methods of providing the court with information from children in family law matters in Australia, in particular for allegations of child sexual abuse or family violence. It discusses the difficulties posed by such information, issues pertaining to its assessment, and the contexts in which information obtained from children can be valuable and where it should be treated with caution.

Interagency working in child protection and domestic violence.

O'Leary P, Young A, Wilde T and Tsantefski M
Australian Social Work v. 71 no. 2 2018: 175-188
The Gold Coast Domestic Violence Integrated Response (GCDVIR) in Queensland is based on the Duluth Model and involves over 15 agencies, including child protection, domestic violence, and justice. It aims to support the safety and wellbeing of women and children living with and separated from domestic and family violence. This article describes the development of the program and the factors that have enabled effective collaboration. It draws on interviews with 30 professionals from a range of agencies involved with GCDVIR, highlighting themes of collaboration versus integration, shared understandings and definitions, risk, accountability, leadership, and jurisdictional tensions.

Practitioner perspectives on collaboration across domestic violence, child protection, and family law : who's minding the gap?

Laing L, Heward-Belle S and Toivonen C
Australian Social Work v. 71 no. 2 2018: 215-227
Australia has two legal systems that address safety where children have been exposed to domestic violence: the state- and territory-based statutory child protection systems and the federal family law system. This article looks at the views of practitioners on the opportunities for, and barriers to, collaboration for children's safety across these systems. It draws on findings from from a case study from the PATRICIA (PAThways and Research InterAgency practice) project, which examined relationships between statutory child protection, family law, and domestic violence and community services, with focus groups held with 54 professionals. The findings reveal common ground and conflicting views, highlighting the need to build common understandings of risk and address jurisdictional fragmentation.

Direct cross-examination in family law matters: incidence and context of direct cross-examination involving self-represented litigants

Carson R, Qu L, De Maio J and Roopani D
Melbourne : Australian Institute of Family Studies, 2018.
In Australia's adversarial court system, there are no specific provisions to prevent a self-represented perpetrator of family violence from directly cross-examining their victim, or to provide alternative processes for a self-represented victim so that they are not required to directly cross-examine their perpetrator. This report was commissioned to learn more about the extent and characteristics of such cases in Australia, as well as what arrangements are made by courts to safeguard litigants. It examines quantitative and qualitative data from court files and audio and transcripts of proceedings, collected from the Family Court of Australia and the Federal Circuit Court of Australia, and analyses unreported judgments of the Family Court of Western Australia. It investigates the occurrence of direct cross-examination in cases of alleged family violence, prevalence and nature of allegations of family violence, allegations of child abuse and parental mental illness, involvement in direct cross-examination by alleged victims and perpetrators, the relationship between direct cross-examination and the type of claims made about each party, the operation of direct cross-examination in such cases, risk assessments and evidentiary profiles, prevalence and outcomes of risk assessments, safeguards employed, remote witness facilities and other security arrangement, judicial monitoring and intervention, and third-party intermediaries.

Birth parents and the collateral consequences of court-ordered child removal : towards a comprehensive framework.

Broadhurst K and Mason C
International Journal of Law, Policy and the Family v. 31 no. 1 Apr 2017: 41-59
This article explores the impact on parents of having a child taken into care through a court-order. Drawing on legislation and policy from Australia, England, and the United States, the authors argue that the court system reinforces parents' exclusion and compounds the challenges they face. Sections include: Birth parents beyond child removal: policy and legislative responses; Time for a fundamental reappraisal: foster care as interim palliative and the discovery of repeat client-hood; Beyond family justice involvement: what can we learn from scholarship concerned with offender rehabilitation?; The collateral consequences of court ordered child removal: towards a comprehensive framework; Grief and court-ordered removal of children; Child removal and social stigma; Third party ripple effects; Legal stigmatisation: nailed down by the past; and Welfare penalties.

Seen and not heard - children in the New Zealand Family Court. Part one, Force

Backbone Collective (Organization)
New Zealand : The Backbone Collective, 2017.
The Backbone Collective in New Zealand advocates for better service responses for women experiencing violence and abuse. This report adds to their work on the responses of the Family Court system. It presents the findings of a survey of 291 mothers on how the Family Court responds to children who have experienced family violence. The report has been entitled 'Force' as it was felt that this encapsulates the ways in which the Family Court is putting women and children in more danger through forced contact and proceedings. 38 Maori women took part in the survey, and their distinct issues are also discussed. Topics include: children's experience of abuse, court responses to children reporting violence, care and contact arrangements, use of risk assessment, children's responses to forced contact, mother blame, and legislation.

Parliamentary inquiry into a better family law system to support and protect those affected by family violence: submission from the Australian Institute of Family Studies

Carson R and Qu L
Canberra, A.C.T. : Standing Committee on Social Policy and Legal Affairs, April 2017.
The Standing Committee on Social Policy and Legal Affairs is conducting an inquiry to improve family law system responses to those affected by family violence. This document is a submission by the Australian Institute of Family Studies to the inquiry, presenting research findings that are relevant to the terms of reference. Drawing on the Longitudinal Study of Separated Families (LSSF) and the Institute's evaluation of the 2012 family violence amendments, it presents data on the prevalence of family violence among separated families, children's exposure to family violence, ongoing safety concerns, use of family law system services, parenting orders in the context of family violence, allegations of family violence and child abuse in court proceedings, and property and financial arrangements in the context of family violence.

Indigenous access to family law in Australia and caring for Indigenous children.

Titterton A
University of New South Wales Law Journal v. 40 no. 1 2017: 146-185
The federal family law system provides for the rights and needs of Indigenous children in Australia, including their right to enjoy their own culture and have their identity positively supported. This article argues that increasing Indigenous access to the federal family law system is one effort that can be made to reduce the over-representation of Indigenous children in out-of-home care. It provides an overview of the legislative framework and recent case law and research regarding Indigenous access to family law in Australia, including its intersections with child protection and recent engagement strategies.

The prevalence of allegations of family violence on proceedings before the Federal Circuit Court of Australia.

Harman J
Family Law Review v. 7 no. 1 2017: 3-19
This article examines the prevalence of allegations of family violence from the perspective of their impact on the workload of the Federal Circuit Court of Australia. Based on a sample of 201 parenting cases from a 14 week period in 2015/16, it looks at the prevalence of family violence or child abuse allegations, past involvement with police or child welfare agencies, the prevalence of mental illness or substance abuse allegations, concurrence of allegations, legal representation, appointment of children's lawyers, delay to court, and comparison with allegations of family violence in the general community. The findings highlight the complexity of cases before the Federal Circuit Court and the demands they make on court resources.

Pathways towards accountability: mapping the journeys of perpetrators of family violence - Phase 1

RMIT University. Centre for Innovative Justice, Victoria. Dept. of Premier and Cabinet
Melbourne, Vic. : Centre for Innovative Justice, RMIT University, 2016.
This report presents a high level overview of the journey of perpetrators of family violence as the service system becomes aware of their behaviour. It identifies possible 'doorways' that a perpetrator encounters that could provide an opportunity for intervention or referral - including general practice, child protection services, police, and the family law system - and considers the ways in which these service sub-sectors can function effectively and collaboratively. All points of the system should function as doors to participation in an appropriate intervention, or at the very least as windows to the risk that the perpetrator poses. Examples of promising practice from Victoria, interstate, and overseas are also included.

Impact of the family justice reforms: phase 3 - exploring variation across 21 local authorities : research report

Research in Practice (Organization), Great Britain. Dept. for Education
London : Dept. for Education, 2016.
One key reform of the 2014 British Children and Families Act is the revised Public Law Outline (PLO), which introduced a 26 week timeframe for completing care (child protection) proceedings. Previously, the average duration for the disposal of a care application was 56 weeks. This report is the third in a series of 3 evaluating this reform. Previous evaluations found that professionals broadly welcomed the changes, while noting a range of challenges in its implementation. This report builds on those previous studies to explore the range of factors which may contribute to variation in the average care case duration of individual local authorities. It draws on interviews with 60 senior managers and legal professionals from 21 local authorities in England.

State child welfare departments and federal family law matters.

Bell F
Family Law Review v. 6 no. 3 2016: 218-225
This article looks at the 'judicial overlap' between state child protection and federal family law, including division of power, information provision, and conflict, citing cases where the court has questioned the appropriateness of a state department's chosen intervention.

Protective mothers : women's understandings of protecting children in the context of legal interventions into intimate partner violence.

Morgan M and Coombes L
Australian Community Psychologist v. 28 no. 1 Aug 2016: 59-78
This article explores mothers' understandings of protecting their children, as part of larger study investigating women's experiences of the coordinated community and criminal justice response of the Family Violence Court in Waitakere, New Zealand. It analyses women's meanings of safety, protection, harm and violence, as part of their discussions of the key moments and relationships that were part of their engagement with advocacy, police and legal services, and as victims of intimate partner physical violence.

Family Law Council report to the Attorney-General on families with complex needs and the intersection of the family law and child protection systems: final report - June 2016 (terms 3, 4 & 5)

Family Law Council (Australia), Australia. Attorney-General's Dept.
Barton, A.C.T. : Attorney-General's Dept., 2016.
The Australian Attorney-General has asked the Family Law Council to inquire into the legal and practical obstacles preventing greater co-operation between the family law and child protection systems. An earlier interim report focused on the first two terms of reference; this final report presents findings and recommendations regarding the remaining three terms: the opportunities for enhancing collaboration and information sharing within the family law system, such as between the family courts and family relationship services; the opportunities for enhancing collaboration and information sharing with other relevant support services, such as child protection and mental health services; and current data limitations.

Family Law Council report to the Attorney-General on families with complex needs and the intersection of the family law and child protection systems: interim report - June 2015 (terms 1 & 2)

Family Law Council (Australia), Australia. Attorney-General's Dept.
Barton, A.C.T. : Attorney-General's Dept., 2016.
The Australian Attorney-General has asked the Family Law Council to inquire into the legal and practical obstacles preventing greater co-operation between the family law and child protection systems. The final report is due by 30 June 2016. This interim report focuses on two specific issues - items 1 and 2 as listed in the terms of reference: the possibilities for transferring proceedings between the family law and state and territory courts exercising care and protection jurisdiction within current jurisdictional frameworks; and the possible benefits of enabling the family courts to exercise the powers of the relevant state and territory courts, and vice versa, and any changes that would be required to implement this approach. This interim report presents the findings and recommendations for these issues.

Children, parents and the courts : legal intervention in family life.

Seymour J
Annandale, NSW : The Federation Press, 2016.
This book explores the tensions between the privacy and sanctity of the family and the need for courts to intervene when children need protection. It features case studies illustrating the difficulties magistrates and judges have encountered in applying the 'best interests' of the child test, including cultural bias, the accommodation of different views of child rearing, child protection in Indigenous communities, and disputes over the medical treatment of a child.

Abbey's project: a Bravehearts paper on the family law system.

Bravehearts Foundation
Arundel, Qld. : Bravehearts Foundation Limited, 2016.
This report highlights the systemic failures of the Australian Family Law System to adequately and appropriately deal with allegations of child sexual assault, and presents recommendations for reform. It argues that the Family Courts must have the correct processes in place to ensure, as far as possible, the safety and protection of the child whose custody they are determining. The report presents 16 case studies to give a voice to the children and parents involved in the Family Law System, and their learnings for services and the system at large. The report is named after Abbey, who had been abused by her father whilst on an ordered visit and who committed suicide in 2013, aged 17.

The challenge of high-conflict family cases involving a child protection agency: a review of literature and an analysis of reported Ontario cases

Houston C and Bala N
Toronto, ON : Ontario Chapter of the Association of Family & Conciliation Courts, 2015.
Child protection agencies on Ontario and around the world are increasingly becoming involved in high conflict custody and access cases, placing children at risk of harm. This report provides insights the nature of such cases in Ontario and how they are managed, with an analysis of 210 reported cases, from 2010-2014, involving custody and access disputes where a report was made to a child protection agency. It looks at the characteristics of the cases, unrepresented litigants, nature of violence or harm, parental alienation, involvement of other 'helping' professions, participation of children, and justice system and child protection outcomes. The limited research available on domestic family law cases that intersect with the child protection system is also discussed. Key findings include: mothers and fathers are about equally likely to make a report to a child protection agency in the context of a parental separation; custody and access cases intersecting with the child protection system are also likely to intersect with the criminal justice system; and child protection professionals may not be verifying the presence or risk of emotional harm due to parental conflict in all cases where such a finding is warranted.

Participation of children and young persons within New Zealand Family Courts.

Callinicos P
Seen and heard - children and the courts joint conference February 2015. Canberra : National Judicial College of Australia, 2015: 35p
This paper looks at statutes within the New Zealand Family Courts Act which pertain to child issues, with a particular emphasis on ascertaining what, if any, role children or young persons might have in the proceedings. The Care of Children Act 2004 (COCA), which is concerned with aspects of guardianship, custody, and contact, and the Children Young Persons and Their Families Act 1999 (CYPFA), which is concerned with child protection and youth justice, are discussed. Some reference will also be made to the role of the Youth Court. Overall, there is no New Zealand statute providing any legislative prescription as to whether, when, or how children's views and wishes be obtained, the issue is left solely to individual Judicial discretion in all respects. The author, a Family Court Judge, presents his views on how he approaches such matters.
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