Introduction

Concerns about child abuse and neglect in the context of separated families highlight the intersection between two different legal systems in Australia. Child protection concerns are dealt with by state and territory systems that are authorised to intervene when children are at risk of harm in the care of their families. However, allegations about safety, abuse and neglect are also commonly raised in the context of disputes between separated parents about the care of their children. Such disputes are dealt with in the federal family law system and are private law disputes for which the parents are responsible. When allegations of child abuse and/or neglect are raised in cases where the parents are separated, it is possible for both the child protection system and the federal family law system to become involved. Recent research has highlighted the prevalence of concerns about child safety, abuse and neglect in post-separation parenting disputes (Kaspiew et al., 2009) and there is increasing recognition of the need for more effective responses in this area (Australian Law Reform Commission & NSW Law Reform Commission [ALRC/NSWLRC], 2010; Chisholm, 2009; Family Law Council [FLC], 2002, 2009) with the interactions between child protection systems and the family law system giving rise to significant concern at a range of levels.

Recent empirical evidence has established that child protection concerns are likely to be pertinent to a significant number of families who use the family law system. It is clear that families with complex problems form the core client-base across family dispute resolution services, lawyers and courts (FLC, 2002; Kaspiew et al., 2009). Most separated parents manage to sort out their parenting arrangements with minimal use of services and lawyers. However, those that rely heavily on the family relationship service system, courts and lawyers tend to be affected by issues relating to family violence, child safety concerns and issues related to mental illness and substance addiction (Kaspiew et al., 2009; see pp. 232-233).

Family violence has been a major contributor to the massive growth in child abuse reports that statutory child protection systems across Australia have experienced in the past decade. Along with parental mental illness and substance misuse, family violence is recognised as the key characteristic of families about whom notifications are made (Allen Consulting Group, 2003). This is particularly the case now that family violence is included within the mandatory reporting obligations in three jurisdictions: New South Wales, Northern Territory, and Tasmania (see Higgins, Bromfield, Richardson, Holzer, & Berlyn, 2010).

Research evidence suggests that often this pre-separation inter-parental violence continues - or is even exacerbated - by the relationship separation (see Braaf & Sneddon, 2007; Kaye, Stubbs, & Tolmie, 2003).

Child protection concerns may arise in two main ways in separated families:

1. where the child is alleged to be currently at risk from spending time in either parent's household, through exposure to child abuse, neglect or family violence; and/or
2. where concerns have arisen about the treatment of the child (child abuse, neglect, exposure to family violence) by either or both parents prior to separation and this history is argued to be relevant to post-separation parenting arrangements.

The Australian Institute of Family Studies (AIFS) Evaluation of the 2006 Family Law Reforms has demonstrated that a history of either physical hurt prior to separation or emotional abuse before during or after separation is common among separated parents (Kaspiew et al., 2009, Table 2.2). For example, the 2008 study of 10,000 separated parents showed that 26% of mothers reported being physically hurt and 39% reported emotional abuse, with the remaining 35% reporting no violence (Kaspiew et al., 2009). Among fathers, 17% reported physical hurt, 36% reported emotional abuse, and 47% reported no violence.

Research shows that there is considerable overlap between the experience of family/domestic violence and children's experiences of other direct forms of abuse and neglect (Higgins, 2004; Hughes, Parkinson, & Vargo, 1989).¹ In one US study of families involved in the child protection system, approximately 45% of female caregivers had experienced partner violence in their lifetime, and nearly 30% in the past 12 months, which is around twice the rate of the general population, despite the definition of intimate partner violence excluding sexual and psychological abuse (Hazen, Connelly, Kelleher, Landsverk, & Barth, 2007).

In the context of high levels of inter-spousal violence, a key concern for separating parents is the safety of the child in the care of the other parent. Significant minorities of both mothers and fathers in the AIFS study of 10,000 separated parents in 2008, said that they had safety concerns associated with ongoing contact with the other parent (Kaspiew et al., 2009, Table 2.4). A greater proportion of mothers had concerns (for themselves: 3.6%; their child: 9.1%; or both themselves and their child: 8.4%) compared with fathers (for themselves: 1.6%; their child: 12.3%; or both themselves and their child: 2.6%). This is consistent with recent research by Cashmore and Parkinson (2009) showing that concerns about the safety of quite young children (including child abuse concerns) are a major issue driving inter-parental conflict. Similarly, in their report on shared care, Cashmore et al. (2010) found that those with concerns about the safety of their child(ren) were more likely to report negative outcomes for their children and to consider that arrangements - whether shared or not - were working poorly. The AIFS evaluation also showed that these families where there was a reported history of violence or the presence of ongoing safety concerns were much more likely to use formal services - family dispute resolution (FDR), lawyers and courts - than families without these concerns (see Kaspiew et al., 2009, p. 232).

This paper examines how the child protection and federal family law systems operate, so that their intersection may be better understood by those working in each system. In addition, the paper outlines recent research findings and policy recommendations that are intended to address some of the difficulties highlighted by the Family Law Council (FLC, 2002) and subsequent research (e.g., Higgins, 2010; Higgins & Kaspiew, 2008).² The paper begins by discussing evidence of the extent to which issues that may give rise to child protection concerns are evident among separating families. It then describes how the child protection and family law systems operate. Areas of overlap are identified, together with mechanisms for dealing with them. Finally, recent developments in policy recommendations are discussed.

The family law system

The family law system comprises a range of relationship support services including Family Relationship Centres and family dispute resolution (FDR) providers as well as legal practitioners (including publicly funded organisations, such as Legal Aid Commissions, and community legal centres and private practitioners) and courts. There are three main courts exercising family law jurisdiction: Western Australia has its own court,⁹ the Family Court of Western Australia, and the Family Court of Australia and the Federal Magistrates Court operate across the rest of Australia. The Family Court of Australia hears matters that are more complex. About 21% of children's matters are initiated in the Family Court of Australia. The Family Court of Australia has a dedicated case-management system for matters involving serious allegations of sexual or physical abuse: Magellan (see Box 2). In 2009, about 2% of the total filings in children's matters across the two courts were Magellan matters (Kaspiew et al., 2009).

Empirical research has confirmed that the bulk of the work at the apex of the family law system in Australia - those cases that come to family courts for judicial determination - contain allegations of family violence and/or child abuse and that such allegations are frequently relevant in matters that are dealt with in the community sector through family dispute resolution (Kaspiew et al., 2009). Issues relating to family violence and child safety are recognised in integral ways in the legislation that governs post-separation parenting arrangements, the Family Law Act 1975 (Cth), and amendments currently under consideration by Parliament in 2011 place even greater emphasis on ensuring children are protected from harm (Family Law Legislation Amendment (Family Violence and Other Measures) Bill 2010) (see Box 5). In broad terms, two key objects of the legislation as it currently stands are to ensure the best interest of children are met by "ensuring that children have the benefit of both their parents having meaningful involvement in their lives" (s60B(1)(a)) and "protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence" (s60B(1)(b)).

Circumstances involving family violence and child abuse are exceptions to two other significant provisions in the legislation. Matters where concerns about these issues can be established on "reasonable grounds" (a low evidentiary threshold below the balance of probabilities) are:

1. exempt from the requirement to attend family dispute resolution (s60I(9)) prior to filing a court application (s60I(9)); and
2. not liable to attract the application of the presumption of equal shared parental responsibility (s61DA(2)).

While the Family Law Act 1975 (Cth) and the regulations that apply to FDR practice¹⁰ recognise that circumstances in which there has been a history of family violence may lead to a situation where a resultant power imbalance renders FDR an unsuitable mechanism for handling parenting disputes, it is clear that matters involving family violence and/or child abuse are not automatically screened out of such processes for a range of reasons (Kaspiew et al., 2009, p. 100, p. 232). It is clear from the findings of the AIFS Evaluation of the 2006 Family Law Reforms that many families with a history of family violence and/or the presence of child protection concerns (a) use family dispute resolution (Kaspiew et al., 2009, p. 100) and (b) have shared care arrangements (Kaspiew et al., 2009, pp. 232-233).

Where disclosures concerning child abuse and neglect are made in family law proceedings, the Family Law Act 1975 (Cth) imposes obligations on courts and professionals working in the system to make notifications to child protection authorities in certain circumstances, and describes how family law courts are to be notified of child abuse and neglect allegations and provisions relating to child welfare authorities (see Box 3). The following sections provide a broad overview of how allegations of child abuse and neglect are dealt with in family dispute resolution and proceedings in family courts.

Family dispute resolution

In practice, many matters that present to family dispute resolution practitioners may involve concerns about child abuse and neglect (Kaspiew et al., 2009). FDR processes start with screening and risk assessment where a practitioner assesses the parties and the issues in dispute. Concerns about child abuse and neglect may emerge at this initial stage but it is also possible that they may not emerge until the actual mediation sessions have commenced. In conducting the initial assessment process, and assessing the suitability of a matter for FDR, practitioners have an obligation to consider whether "the risk that a child may suffer abuse" (among other matters) is relevant to the ability of the parties to negotiate freely (Family Law (Family Dispute Resolution Practitioners) Regulations 2008 R25(d)). Where concerns about child abuse emerge during the course of family dispute resolution, and the practitioner concludes that FDR is no longer appropriate, they must terminate the FDR process (R29(c)).

Where a matter is assessed as being unsuitable for FDR at the outset or after commencement because of concerns about child abuse (or other reasons), the FDR practitioner may issue a certificate under the Family Law Act 1975 s60I(8) that will enable the parties to file a court application. Of course, as noted above, matters where there are reasonable grounds to believe a party has engaged in child abuse, or there is a risk of child abuse, are exempt from the requirement to attend FDR.

Courts

Allegations in relation to child abuse and neglect are commonly raised in parenting disputes heard in the family courts (Brown & Alexander, 2007; Brown, Frederico, Hewitt, & Sheehan, 1998; Higgins & Kaspiew, 2008; Moloney et al., 2007, Table 5.1; Kaspiew et al., 2009, Table 13.8). Such allegations may be raised by one or both parties as a question of fact relevant to the issue of what parenting orders may be in a child's best interests. Where such allegations are raised, the court needs to consider whether evidence has been provided to satisfy it to the relevant standard of proof - the balance of probabilities - that the allegation is true. In some instances, the court will apply what is known as the "unacceptable risk test" (M and M 1988 166 CLR 69 ¶ 23). Assessment of whether or not to make an order for contact with the parent who allegedly represents a risk to the child's safety involves assessing the evidence and asking the question whether, on the basis of the evidence, the child "may be exposed to an unacceptable risk of harm". In applying this test, the court is to have regard to any evidence of past abuse (findings in this context are made on the so-called Briginshaw standard of proof, which is the balance of probabilities to the "stricter end of the civil spectrum" (Briginshaw v Briginshaw (1938) 60 CLR 336, s140 Evidence Act 1995 (Cth)). It also considers whether the evidence discloses the existence of future risk (evidence in relation to this consideration is required to meet the ordinary balance of probabilities standard: Johnson and Page [2007] Fam CA 1235; (2007) FLC ¶93-344 (May, Boland and Stevenson JJ)). This determination will then be one of the factors that the court considers in deciding what parenting orders will be in the child's best interests (Parkinson, 1999).

The court has a wide discretion to tailor such orders. Court orders usually deal with two main issues: parental responsibility and time. Parental responsibility may be specified to be: (i) shared or (ii) allocated to one parent or (iii) aspects of decision-making (e.g., health or education) may be reserved to one parent or may be decided by the court - for example which school a child is to attend. A range of circumstances may lead a court to make orders allocating all or some aspects of parental responsibility to one parent and these include situations where concerns about family violence and child abuse are upheld. However, positive findings in relation to such issues do not always lead to this outcome - it depends on the facts of each situation.

In relation to time, a wide range of possibilities is open to the court in specifying what amount of time a child will spend with each parent. Where the evidence supports concerns about risks to a child, a court may: make orders for no time to be spent with the parent found to pose a risk to the child (sometimes orders may permit telephone contact, or cards to be sent to the child on special occasions); the parent to spend time with the child on a supervised basis (at a contact centre, for example); or the parent to spend time with the child in accordance with special conditions specified in the order that may be designed to ameliorate risks. For example, an order may specify that time is to be spent during the day, in the presence of a third party and the parent is to abstain from drinking alcohol.

After having briefly described the two systems, we look more specifically in the next section at the ways family law and child protection systems interact, the overlaps, and the gaps.

New research and emerging policy developments

In the past 12 months, four significant reports have highlighted the need to address the gaps and overlaps between the child protection and federal family law system. One was a large empirical study that considered these issues as part of an overall evaluation of the 2006 family law reforms (the AIFS Evaluation, Kaspiew et al., 2009). The other three reports were based on consultation and legislative and process analysis: they were by the Australian Law Reform Commission and NSW Law Reform Commission (ALRC/NSWLRC, 2010), Professor Richard Chisholm (2009) and the Family Law Council (FLC, 2009).¹² Some common themes that emerge from these reports include:

1. the frequency with which the provisions relating to shared parenting in the Family Law Act 1975 (Cth) are misunderstood, and the lack of awareness among some professionals and parents that the presumption in favour of equal shared parental responsibility does not apply where there are grounds to believe a party has engaged in family violence or child abuse;
2. concern about some aspects of the Family Law Act 1975 (Cth) that may deter parents from raising concerns about family violence and child abuse, namely a provision that obligates courts to make costs orders against parties found to have knowingly made "false statements" in proceedings (s117AB) and a provision requiring courts to consider the extent to which one parent has facilitated the involvement of the other parent in the child's life (s60CC(3)(c));
3. the need for better and more comprehensive processes for screening for family violence and child abuse across the family law system;
4. the need for better education and training of professionals across the family law system in relation to family violence and child abuse; and
5. the need for better co-operation between professionals and agencies in the federal family law system and child protection departments in the states and territories.

The Attorney General's proposed amendments to the Family Law Act 1975 (Cth), summarised in Box 5, reflect the Australian Government's response to the reports by AIFS, Chisholm and the Family Law Council (McClelland, 2010).

Australian Institute of Family Studies 2009 report: Evaluation of the 2006 Family Law Reforms

In relation to family violence and child abuse, key findings of the AIFS report (Kaspiew et al., 2009) were that:

• parents who report a history of family violence and/or ongoing concerns for their own safety or that of their children as a result of ongoing contact with the other parent are no less likely (and perhaps more likely) to have shared care arrangements than parents without these concerns (pp. 165-166);
• where parents report safety concerns as a result of spending time with the other parent, child wellbeing is lower, particularly for children in shared care arrangements, according to mothers' reports (Figure 11.11);
• sometimes family dispute resolution processes are applied inappropriately for families where there is a reported history of family violence and/or the presence of ongoing safety concerns (p. 102); and
• family law system professionals are more confident about the adequacy of the system's ability to ensure that children maintain meaningful involvement with each parent after separation than they are about its ability to ensure that children are protected from harm (pp. 235-236).

Australian Law Reform Commission and New South Wales Law Reform Commission 2010 report: Family Violence - A National Legal Response

The consultation paper (April 2010) and final report (November 2010) highlighted a range of problems with the current legal frameworks for family law and child protection systems in relation to family violence and children's safety. The reports acknowledged that the problems are at the intersections, and noted the absence (or limited nature) of interagency protocols. The report emphasised three key levels at which differences occur between the sectors of family law, criminal law, family violence legislation, and child protection legislation - including statutory departments and children's courts. Not only are there structural barriers (largely a result of the constitutional division of responsibilities between Commonwealth and states¹³), but also practice silos (reflected in organisational structures, protocols, and daily work routines) and cultural differences (beliefs and expectations about families, change etc.).

Launched on 11 November 2010, some of the key recommendations in the final report relating specifically to the intersection between family law and child protection included:

• strengthening the provision of investigatory and reporting services to family courts in cases involving children's safety by creating mechanisms for child protection services to provide these services (R19-1);
• expanding the jurisdiction of courts dealing with family violence to maximise the chance that families will be able to get all the legal protections they need from any court they approach - for example, giving family courts the power to confer parental rights and duties on a child protection agency in cases where there is no other viable and protective carer (R19-2);
• requiring judicial officers who make or vary a protection order in a state magistrates court to consider reviving, varying, discharging or suspending an inconsistent parenting order (R16-1); and
• ensuring family courts give primary consideration to the protection of a person affected by a parenting order over the other factors that are relevant to determining the best interests of the child (R16-4).

Another national initiative: The National Framework for Protecting Australia's Children

COAG's endorsement in April 2009 of a National Framework for Protecting Australia's children 2009-2020 (along with the 3-yearly implementation plans that will progressively be developed) provides the context for understanding nationally the approach to children's safety and wellbeing in Australia. It makes clear the principles to guide actions to protect children, with a key recognition of the shared responsibility across levels of government, agencies, organisations, individuals, families and communities, to ensure children are safe and well. The framework articulates some of the connections between the work of statutory departments (in responding to at-risk children) and those other sectors who can be involved in either prevention, early intervention, or other systems and services that can be enlisted to assist with detecting and responding to the needs of children at risk. These include adult-focused services (like mental health and substance abuse services) as well as domestic violence services and the family law system.

Although there is little explicit acknowledgement of family law issues in relation to protecting children, under supporting outcome 1 ("Children live in safe and supportive families and communities"), one of the initial 3-year actions is to continue improvements to the experience of court processes for children, such as the rollout of Magellan (COAG, 2009). In addition, a number of the national priorities identified in the first 3-year action plan relate to "joined-up service delivery" and information sharing protocols, both of which are essential for improving the intersection between the family law and child protection systems.

Recent state/territory child protection inquiries

On 18 October 2010, the Board of Inquiry into the Child Protection System in the Northern Territory released its two-volume report, Growing Them Strong, Together: Promoting the Safety and Wellbeing of the Northern Territory's Children. There is only one mention in the report about interactions between the Family Court of Australia and the child protection department or children's court. The report documented complaints that:

Departmental workers may refer concerned family members to the Family Court to resolve matters that were clearly of a protective nature. For example, where a grandmother has assumed care of a grandchild because of concerns about his/her safety, it has been alleged that the Department routinely refers such concerned relatives to the Family ... Court in order to validate the arrangement rather than dealing with the matter as a kinship placement. The Children's Commissioner has referred to such practices." (Board of Inquiry into the Child Protection System in the Northern Territory, 2010, p. 306).

While acknowledging the role of Magellan in improving case-flow issues and provision of appropriate information, in light of submissions to the Inquiry, the Board concluded that a number of gaps in the intersecting jurisdictional responsibilities remain.

Similarly, in the report from the Wood Inquiry into Child Protection in NSW,¹⁴ family courts and the family law service system were not specifically singled out; however, Justice Wood (2008) made broad recommendations in relation to interagency collaboration, as well as the importance of addressing the needs of children in the context of family violence.

Key principles underpinning the recommendations - which are now being implemented through the NSW Government's reform agenda, "Keep Them Safe" - included the acknowledgement that child protection is the collective responsibility of the whole of government and of the community, and the importance of service integration is seen as vital.

The Victorian Law Reform Commission (VLRC, 2010) produced a report on their inquiry into protection applications in the Children's Court. Highlighting issues such as the problems created by poor interagency collaboration, the VLRC report identified several areas of relevance to family law, including, notably, the need to build common understanding of what the "best interests" principles means across both jurisdictions. In keeping with its terms of reference, the report focused on how court processes can be reformed - in light of the traditional adversarial character of current approaches, which have their roots in criminal law approaches as a result of the historical development of the child protection jurisdiction from a legal perspective. The report recommends that any reform reflect an overarching objective:

The processes for determining the outcome of protection applications should emphasise supported child-centred agreements and should rely upon adjudication by inquisitorial means only when proceeding by way of supported agreement is not achievable or not appropriate in the circumstances. (VLRC, 2010, p. 17)

The VLRC (2010) put forward five possible options that would be consistent with achieving this objective, with the resolution of child protection matters through agreement rather than litigation, and the use of less adversarial court processes where litigation is necessary, being the central recommendation for reform. However, the report does not explicitly address the interaction with, or overlap in jurisdictional responsibility for child protection concerns raised in family law matters.

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• Victorian Law Reform Commission. (2010). Protection applications in the children's court (PDF 4.1 MB) (Final Report 19). Melbourne: VLRC. Retrieved from <www.lawreform.vic.gov.au/wps/wcm/connect/ec6bdb00442f6e5ca916fb48e314eb2b/PACC.pdf?MOD=AJPERES>
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