Children s Court of Victoria

Transcription

1 Children s Court of Victoria Submission to the Family Law Council Families with Complex Needs and the Intersection of the Family Law & Child Protection Systems May 2015

2 The Children s Court Of Victoria The Children s Court of Victoria is a specialist jurisdiction created by Section 504 of the Children, Youth and Families Act 2005 to deal with matters relating to children. The head of the Children s Court is the President who is a County Court judge. The Court has three divisions dealing with cases involving children and young people: The Family Division determines applications relating to the care and protection of children and young people from birth to 17 years of age who are at risk. The Family Division sits at Melbourne, Moorabbin and Broadmeadows (from later in 2015) and in regional Victoria, at Magistrates Court of Victoria (MCV) venues where Children s Court services are delivered by MCV staff and judicial officers. The Court s Criminal Division deals with children and young people aged between 10 and 17 years at the time of committing an alleged offence and sits at the Melbourne Children s Court and at metropolitan and regional MCV court venues. The Children s Koori Court Division was established in 2005 in response to over representation of young Koori people in the juvenile justice system. The Koori Court deals with young Koori people found guilty of committing a criminal offence and aims to provide improved opportunities for engagement between indigenous young people and their families. The Koori Court currently operates at 8 locations across the State. The Children s Court also has concurrent jurisdiction with MCV to hear and determine applications for intervention orders under the Family Violence Prevention Act 2008 (Vic) and the Personal Safety Intervention Orders Act 2008 (Vic). In the context of family violence, the Children s Court can intersect with the lives of children and young people who are victims of family violence, witnesses to family violence or, increasingly, where they appear as perpetrators of family violence, that is as respondents in Applications for Intervention Orders and/or charged with criminal offences which arise from incidents of family violence. In the past decade the Court s workload has been shaped by increasing numbers of primary 1 and secondary 2 child protection applications in the Family Division. Over the past five years the number of child protection applications (primary and secondary) initiated across the State has increased by 42%. In 2013/14, there were primary and secondary applications initiated compared to in the previous year representing a 14.5% increase from one year to the next. Approximately 85% of the Court s resources are dedicated to managing and determining Family Division cases. Children s Court processes are focussed on meeting the needs of vulnerable children and families and the complex nature of the matters the Court determines demands an intensive and specialist response. The Court has developed a number of innovative approaches to support children and families presenting with often multiple complex problems that can include social isolation, poverty, substance abuse, mental health concerns, disability and disengagement with education. In response to the recommendations of a number of major reviews and enquiries into Victoria s child protection system 3 the Court has been funded to develop and implement reforms which aim to move the Court from traditional adversarial roles and processes to therapeutic and restorative approaches and so in this way more positively impact on the lives of vulnerable children. These programs include: 1 Primary applications are new cases including protection applications by notice, apprehension, irreconcilable differences, search warrants and applications for permanent care 2 Secondary applications are applications made in relation to existing cases including applications to extend, vary and revoke. 3 Ombudsman s Own Motion Investigation into DHS Child Protection (Nov 2009), Victoria Law Reform Commission: Protection Applications in the Children s Court (Nov 2009), Premiers Child Proceedings Taskforce (2010), Victoria s Vulnerable Children. Protecting Victoria s Vulnerable Children Inquiry (2012)

3 Conciliation conferences (also referred to as New Model Conferences) are conducted early in child protection cases to provide an opportunity for parties to agree outcomes without the need for a contested adversarial court hearing. A unique feature of the Court s conferencing model is the focus on identifying the strengths as well as risks within vulnerable families and to build on these strengths in the best interests of the child or children involved. Parents and children are able to speak for themselves in conferences where conveners support all parties to work collaboratively to identify and resolve issues in dispute. Following the introduction of conciliation conferences in 2010, workload and demand have steadily increased as the program has been implemented across Melbourne and regional Victoria. In 2012, the Court opened a dedicated Conferencing Centre which provides a safe, calm and comfortable environment conducive to collaborative negotiations. From the program s inception to the completion of the statewide rollout in 2014, conference outcome indicators have been consistently positive. In 2013/14, 2500 conciliation conferences were listed across the state. Of these, 48% matters settled outright, 22% settled partially, and the remaining 30% proceeded to directions hearing or contest for judicial determination. In the Criminal Division, group conferencing which is based on restorative justice principles operates as a pre-sentence option aimed at helping young people avoid further offending or more serious offending by strengthening the family and community supports around them. In June 2015, the Court in conjunction with Jesuit Social Services will also commence a Youth Diversion Pilot program at seven sites. This program will offer young people an opportunity to address the underlying causes contributing to their criminal behaviour and divert them from further entry into the criminal justice system. A key objective of the Diversion program is to enable support and intervention to be provided to young people who may be starting out on a path of offending, and to facilitate diversion away from the criminal justice system at this crucial point. Young people who successfully complete the program will avoid a finding of guilt being recorded. Interventions like these aim to strengthen family, school and community supports around young people and to address the underlying reasons for their offending. The Family Drug Treatment Court (FDTC) pilot is an intensive therapeutic 12 month judicially monitored program which aims to reunite families fractured by parental substance abuse. The FDTC, the first of such to be trialed in Australia, currently operates at Melbourne but will relocate to the new Broadmeadows Children s Court when that facility is completed later in The Sexual Abuse List is an intensive case management approach for the management, monitoring and determination of child protection proceedings involving allegations of sexual abuse. The list commenced in February 2013 and was established to reduce the time between first application and final orders, reduce the number of hearings needed to achieve this and provide oversight of the case plans by coordinating the efforts of legal and child welfare personnel. 4 Judicial Resolution Conferences (JRC) are conducted by Children s Court magistrates in the most complex and entrenched Family Division disputes. The JRC is a meeting presided over by the judicial officer and uses conciliation techniques in order to promote settlement and agreement. Establishment of the Koori Family Division initiative at the new Broadmeadows Children s Court will enhance culturally appropriate practices for child protection proceedings involving Koori children and families. This approach builds upon the success of the Children s Koori Court model in the Criminal Division of the Court. In addition to these specific reform initiatives, the Court is establishing its new Broadmeadows Children s Court, in Melbourne s northern suburbs, as an innovation hub to develop, trial and evaluate new approaches to further enhance the court process for young people and their families in the Family Division. 4 Sheehan, R (2012) Management of Sexual Abuse Cases in the Family Division of the Children s Court of Victoria - Evaluation

4 Legal Practice in Child Protection and Family Law The Child Protection Panel 5 is a legal practitioner panel established under section 29A of the Legal Aid Act 1978 covering matters undertaken in the Family Division of the Children s Court under a grant of legal assistance, including; Matters involving a parent, guardian or other interested person in the Family Division of the Children s Court Matters involving a child in the Family Division of the Children s Court Early intervention and dispute resolution for parenting orders Child protection appeals Judicial review of Children s Court decisions This exclusive, specialist panel for practice in the Children s Court is distinct from the Family Law Panel 6 which operates to create practice expertise in the Family Law jurisdiction which covers legally assisted; Early intervention and dispute resolution for parenting orders Making and responding to applications for parenting orders Applications to discharge or vary parenting orders Child support and child maintenance Arrears of spousal of child maintenance or child support Recovery of children or location and information orders Parentage Nullity of marriage International child abduction matters Contravention and enforcement of parenting orders and contempt of court Family law final hearings Appeals in family law or child support matters Special medical procedures involving children There will be commentary on these two distinct, specialist streams of practice later in this submission

5 Executive Summary The Children s Court supports a considered and measured assessment of the intersection between the child protection jurisdiction and federal family law jurisdiction in the context of creating an improved, streamlined and more integrated court process for children and families. Reform should be approached in a cautious way and in a manner which recognises the complexity of the dual jurisdictions and the internal and external resource systems which underpin them. Given the specialist nature of the Children s Court jurisdiction to properly deal with child protection proceedings, the vesting of state child protection powers to the family law jurisdiction needs to be dealt with carefully. Such an approach would need to contribute to improved outcomes for young people given the significant Victorian investment in alternative and non-adversarial resolution programs in the Family Division of the Court. The Court supports clarification of the statutory uncertainty regarding the capacity of Children s Courts to exercise the family jurisdiction and is of the view that this should be addressed as a matter of priority and before substantive operational reforms are commenced. Any residual uncertainty regarding jurisdictional matters which may follow a thorough review process should be addressed by clear and unambiguous statutory reform. Subject to clarification of the legislative framework surrounding cross vesting, the Court supports greater exercise of the family law jurisdiction at the state level in circumstances where to do so is likely to bring about the effective and appropriate conclusion of child protection proceedings. The jurisdiction of the Court should be limited to the making of parenting orders by consent and should be supported by practical reform activities aimed at streamlining and better integrating the Victoria Legal Aid Child Protection Panel and Family Law Panel. The delivery of effective and consistent legal representation for children and families, irrespective of jurisdiction, will be a key driver towards achieving a more integrated and well understood service system capable of appropriately resolving disputes when, not where, they arise.

6 Summary of Recommendations 1. The Court should have power to make parenting orders under Part VII of the Family Law Act 2. The Court would most commonly exercise this power to make appropriate orders under the Family Law Act where a child was initially the subject of a protection application and the protective concerns have ceased to be an issue 3. Work should commence to address statutory uncertainty regarding the capacity of Children s Courts to exercise family law jurisdiction as a matter of priority 4. Consideration should be given to the Victoria Legal Aid panel arrangements with respect to Child Protection and Family Law in the context of whether they deliver optimal service to children and families across both systems 5. The vesting of state child protection powers to the family law jurisdiction needs to be dealt with cautiously and should occur only on the basis that such an approach would contribute to improved outcomes for young people. Vesting should be limited to enable the making of orders giving parental rights and duties to a child protection agency 6. Legislation should be enacted to enable the sharing of Children s Court Clinic Reports with the Family Law jurisdiction

7 What are the experiences of children and families who are involved in both child protection and family law proceedings? For children and families in child protection cases in the Court s Family Division, the court and legal process can be confronting and complex. For families who must navigate multiple jurisdictions where issues of child protection, family law and often family violence interweave, this complexity is compounded. Typically these families, as well as grappling to engage effectively with a confusing array of court events do so while dealing with problems such as social or cultural isolation, substance abuse, mental illness, homelessness, disability and for many, family violence. For these most vulnerable members of our community, attending court hearings or medical and forensic appointments and instructing legal representatives can present as insurmountable challenges. Recognising these issues as inherent in many, if not most of the families who come before the Family Division, wherever possible the Court tries to balance the need for compliance with listing and hearing processes as essential to the effective management of the Court s workload, with acceptance that for some families late arrivals at court, failure to appear at hearings and unpreparedness for hearings are symptomatic of the disadvantage they suffer and which has often lead to their involvement in the court process. In response the Court has developed practices that endeavour to accommodate these families. These include; with few exceptions family members are not required to prepare, file and serve documents most adult family members are legally represented, usually by a lawyer that has experience in the jurisdiction all children over the age of ten are represented (on a direct instructions basis) as are those who have had Independent Children s Lawyers appointed on the basis of exceptional circumstances. In circumstances where DHHS propose to withdraw from involvement with a family on the basis that family court orders are pursued, it is this Court s experience that these parents struggle to institute proceedings, resulting in repeated adjournments in the Children s Court and consequential repeated extensions of protective orders. This scenario is detrimental for children, carers, DHHS and for the Court. Where family members seek parenting orders in the family law jurisdiction it is the experience of this Court that they often have difficulty accessing legal representation. Family members are also liable to be overwhelmed and confused by the processes and documents associated with instituting proceedings in the family courts; even where they have been able to institute proceedings they are often self-represented, compounding the difficulties they already face. How might these experiences be improved? It is this Court s view that reform should be pursued to bring about improvements to enable parties to interact and engage effectively with the court process where they are required to do so. Ideally, matters which begin as child protection proceedings in the Children s Court and which should conclude with Family Court parenting orders should be dealt with by one court. The Children s Court, as the jurisdiction with specialist experience, services and processes built around the best interest of vulnerable children, is the appropriate court in these circumstances. Where there are multiple proceedings relating to the protection and care of children, continuity should extend to legal representation, without which the Children s Court will find itself similarly placed to family courts in having to ensure somehow that parties with complex needs are able to participate effectively in a complex legal proceeding.

8 The Court is proud of its ADR initiatives which are acknowledged as best practice in the Australian child welfare jurisdiction. If the Court were to be enabled to exercise jurisdiction under the Family Law Act then it would follow that existing conciliation conferencing and judicial resolution conferencing should be expanded accordingly; the Court s conciliation conference conveners have extensive experience in dealing with these most vulnerable of families and are well placed to achieve negotiated outcomes in a nonadversarial environment. By ensuring that all proceedings are dealt with in one court the families can at least continue to be involved with an entity that they have become familiar with; they will be acquainted with the buildings, the court staff, the legal practitioners and the judicial officers. The court may not be where they would ideally choose to be, but it would at the least be an environment with which they are familiar and that familiarity with the court would minimise at least one barrier to their ongoing participation in the ongoing court process. Recommendation 1 - The Court should have power to make parenting orders under Part VII of the Family Law Act Recommendation 2 - The Court would most commonly exercise this power to make appropriate orders under the Family Law Act where a child was initially the subject of a protection application and the protective concerns have ceased to be an issue What problems do practitioners and services face in supporting clients who are involved in both child protection and family law proceedings? How might these problems be addressed? Legal practice for lawyers who specialise in child protection differs markedly from that of lawyers who practice as specialists in the family courts. Specifically, lawyers who practice regularly in child protection cases at the Melbourne Children s Court and at the Court s metropolitan venues are essentially solicitor advocates, working as they do at these locations, each day, for most of the day and with multiple briefs. The nature of child protection litigation is such that the requirement for families to prepare complex documentation for court events is minimal. Occasionally a simple hand written form might be completed to institute a secondary application but otherwise no affidavits are required and correspondence between parties appears to be minimal. For lawyers practicing in the child protection jurisdiction, clients present with their own challenges; they will often fail to keep appointments, fail to appear at Court, be difficult to contact and may only be available for instructions on the day of the hearing. By contrast, it is this Court s observation that solicitors with a family court practice are less often required to attend at court and are generally more engaged in office based practice in relation to taking instructions from clients and preparing documents and correspondence. Family law practice is also by comparison far more reliant on correspondence between parties around court events. It is the Court s observation that there are currently very few private firm regularly engaged in child protection work who also offer clients family court expertise. While Victoria Legal Aid (VLA) is large enough and diversified enough to offer expertise in both areas of law, VLA is not heavily involved in child protection matters (other than as a funding agency) due to the large potential for conflict of interest where VLA has appeared for parties in child protection matters in other jurisdictions. The reality then is that most family members in child protection proceedings are referred by their legal representatives to another lawyer with a family court practice when the need for a parenting order in the federal family law jurisdiction is required. Such referral is likely to be made only where legal aid funding might be available and in the Court s view legal aid is often not available, so minimising the prospect for ongoing legal representation, either in-house or on a referred out basis in these circumstances. The result is that child protection matters are then often repeatedly adjourned in the hope that an unrepresented parent will make application for a parenting order in the federal family court.

9 The problem outlined above could be alleviated by the following measures; k 1. Simplified documentary requirements associated with the institution of family court proceedings so as to encourage child protection lawyers to continue to represent parties in child protection and family law proceedings arising out of the same circumstances. 2. An extension of legal aid grants available to child protection clients for subsequent, related family court proceedings. What are the possible benefits for families of enabling Children's Courts to make parenting orders under Part VII of the Family Law Act? In what circumstances would this power be useful? What would be the likely challenges for practice that might be created by this change? The best interests of children cannot be served where children and their families, are required to navigate multiple jurisdictions. It is the view of the Children s Court that where possible, matters involving the care and protection of children should be dealt with in one jurisdiction, particularly where there is the consent of the parties to do so. Where this cannot be achieved, a procedural and service framework built around appropriate information sharing and availability of specialist lawyers and liaison services must be in place to ensure that parties are properly supported as proceedings move from one jurisdiction to another. Presently, each state court of summary jurisdiction is vested with jurisdiction under Part VII of the Family Law Act (the Act). As such, magistrates are able to exercise federal family law jurisdiction in the circumstances prescribed by s96j of the Act. However, it is not clear that the Children s Court is a court of summary jurisdiction for the purposes of Part VII of the Act. This uncertainty was acknowledged in the recommendation of the Australian Law Reform Commission 7 (Recommendation 19-4) that the Family Law Act 1975 be amended to give children s courts the same powers as magistrates courts. The Children s Court of Victoria supports this recommendation. Under the Children, Youth and Families Act 2005 (CYFA), the Children s Court of Victoria consists of a President, the magistrates, the judicial registrars and the registrars of the Court. The President of the Court is a Judge of the County Court. It is critical that all Children s Court judicial officers, including the President, be vested with power to exercise federal family law jurisdiction. It would be inappropriate for such referral to be made available to magistrates but not the Head of the Children s Court. If such referral were to be enacted, where a child is the subject of a protection application in the Children s Court and the protective concerns are addressed, the Children s Court could make appropriate parenting orders under the Family Law Act, having already been appraised of the issues affecting the child and family throughout the child protection proceeding. Recommendation 3 - Work should commence to address statutory uncertainty regarding the capacity of Children s Courts to exercise family law jurisdiction as a matter of priority What are the possible benefits for families of enabling the family courts to make Children's Court orders? In what circumstances would this power be useful? What challenges for practice might be created by this change? As a logical extension of the Court s fundamental view that the best interests of children cannot be advanced where children and their families are required to navigate multiple jurisdictions, proceedings in relation to the care, protection, wellbeing and custody of children should, to the extent that it is reasonably possible, be dealt with in the originating Court. This is particularly so when the parties have provided 7 Australian Law Reform Commission (2010) Family Violence A National Legal Response ALRC Report 114

10 informed consent for this to occur. Jurisdictional continuity supported by continuity of legal assistance and associated support arrangements better enables children and families to have a clearer understanding of the legal processes which are occurring around them and a more meaningful appreciation of their central role in those processes. These issues however do not come without complexity and challenges and must be approached cautiously. In this context, the Court supports the Australian Law Reform Commission s observations 8 around the complexity involved in vesting state child protection jurisdiction to the family law courts and its disinclination towards a general reference. It s recommendation (19-2) that a limited reference of powers to enable the making of orders giving parental rights and duties to a child protection agency is sensible and is supported. The practical application of this approach would necessitate, in the Court s view, significant reform to the Victorian Legal Aid practitioner panel arrangements. The realisable benefits of enhanced integration of jurisdictional arrangements simply will not be achieved if the practice siloes created by the panels are not addressed. While it is acknowledged that such reform will be significant, the practitioner arrangements which support and are so fundamentally important to the effective operation of the Courts in this area should be responsive to, and change with, jurisdictional reform. The maintenance of separate and distinct practitioner panels would be inconsistent with a more integrated approach to the delivery of child protection and family law cross the two judicial systems and would limit the extent to which legal aid funded practitioners could assist children and families with the breadth of their legal issues. The Court suggests that there should be reconsideration of separate legal panel arrangements for Child Protection and Family Law proceedings and creation of panel arrangements which best support children and families irrespective of where their proceedings arise and are dealt with. Recommendation 4 Consideration should be given to the Victoria Legal Aid panel arrangements with respect to Child Protection and Family Law in the context of whether they deliver optimal service to children and families across both systems Recommendation 5 - The vesting of state child protection powers to the family law jurisdiction needs to be dealt with cautiously and should occur only on the basis that such an approach would contribute to improved outcomes for young people. Vesting should be limited to enable the making of orders giving parental rights and duties to a child protection agency Are there any legislative or practice changes that would help to minimise the duplication of reports involved when families move between the family courts and the Children s Courts? The Children s Court Clinic (the Clinic) is established by section 546 of the Children, Youth and Families Act 2005 (the Act) and has the following functions; To make clinical assessments of children; To submit reports to courts and other bodies; To provide clinical services to children and their families The Clinicians employed within the Clinic are experienced and skilled psychologists and psychiatrists who maintain specialist knowledge in the areas of child protection and youth offending. Clinicians provide advice about children and their families, the course and trajectory of a child s development, special needs identified within the family and treatment options which may be necessary and available. 9 Clinic reports also make recommendations to the Court as to disposition. 8 Australian law Reform Commission (2010) Family Violence A National Legal Response (ALRC Report 114) 9 Children s Court of Victoria, Annual Report

11 Reports produced to the Court by the Clinic are confidential pursuant to section 552 of the Act. Information within a report must not be disclosed without the consent of the child who is subject of the report or his/her parent. A person who makes such a disclosure commits an offence against this part subject to penalty of 10 penalty units. Notwithstanding these provisions, the Court believes there are compelling policy reasons to permit the disclosure and transmission of these reports to family law jurisdiction courts where such disclosure is reasonably and necessarily related to a proceeding in those Courts. Clinic reports can and should contribute to the pool of knowledge judges of the family law system have available to them during the course of the proceeding. The Court submits that legislative amendment be considered and, if necessary, progressed to enable appropriate sharing of Clinic reports with the family law jurisdiction. Recommendation 6 - Legislation should be enacted to enable the sharing of Children s Court Clinic Reports with the Family Law jurisdiction