Family Law Decision Making

Information Sharing, Understanding and Collaboration

Jennifer HannanPrincipal Clinician

Acknowledgement

We acknowledge the original custodians of this land and walk alongside them in the spirit of reconciliation.

Introduction• Family Law Reference• 3 Difference Lenses-Community sector, child

protection sector, family court sector• Case Study –Family X with 3 different lenses• Issues for each sector• Possible Improvements• How well does the system works for you? What

are the issues that you confront each day?• Questions

Family Law Council Terms of Reference

• Possibility of enhanced information sharing between the Community Sector, Child Protection Services and The Courts.

• Important as the court increasingly deals with complex multi problem cases involving family violence, drug and alcohol, and mental health issues.

Working Together• For all players to work effectively together

to support families and children at risk they must have a better understanding of how each other works and their roles/requirements.

• All parts of the system need to see themselves as value adding to each other not focused on the outcomes they need to achieve alone

Children’s Best Interests

3 Different Lenses 3 Different Approaches•Community Sector

•Child Protection

• The Family Court

Community Sector Agencies• Assessment of short and long term levels of

need/ trauma and risk - not always crisis response

• Duty of fidelity is owed to the client-focus on support and therapeutic intervention

• Works within a context of advocacy and networking of clients with services

Child Protection• Provides assessment of imminent risk to a

child

• Investigative framework

• Ensures a child has at least one safe parent

• Works within a context of the allocation of scarce resources

The Family Court• Supports the rights of the child to have a

relationship with both parents

• Promotes the paramountcy principle of the best interests of the child being central and the rights of the child to be safe - Section 60CA of the Family Law Act 1975 (Cth) (‘Family Law Act’)

• Works within a context of evidence

Case Study - Genogram

Mrs X Mr X

Damian

12Jessie

6Julian

10David

8

Case Study – The Community Sector

• Intake and assessment

• Referral to Child Protection on basis of risk

• Referral to other services

• On going support and therapeutic intervention

Community Sector Assumptions• DCP will investigate and intervene to protect the

children from harm• Children will be seen by the Family Court

Consultancy service as routine and they will be able to express their wishes

• Information will be available to the court to ensure

the safety of the children• There will be an understanding of the effects of

trauma on children and contact arrangements will reflect this

• Evidence from Counselling Services (DV) will be sufficient to ensure the validation of the DV history

Case Study - Child Protection• Not deemed appropriate to investigate

• Unclear whether this is a threshold issue or is left just because of its family law status

• Poor communication back to the referrer- no case management

• No referral to services

Child Protection Assumptions• As it is in the Family Court the matter of safety

from the father will be dealt with by the court• Family already has access to services through

contact with the FRC• Most allegations of DV related to the family law

proceedings are as a result of high conflict associated with separation and not true DV and so can be dealt with by the Family Court

• Resources are best spent on cases where there may be no community/court involvement and thus the highest levels of immediate risk

Case Study - Family Court• No information from external agencies is

available at first court event• No information is available from Child Protection• Court needs to gather information - ICL and Court

Expert appointments, Form 4 in WA• CCS service involved• Decision making on balance of probability based

on the evidence• Decision must take into account primary and

secondary considerations as outlined in the Act

Family Court Assumptions• As there is no information on Child Protection file then

safety of child/ women may not be an issue• Court expert report is main forensic evidence• Information from DV Counselling Services is not given the

same weight as forensic evidence• Children’s views are referred to in the court however

their views are over ridden by forensic report and ICL advice as children are not capable of knowing their own minds

• Just because violence has been present doesn’t mean perpetrators can’t be respectful parents

• Often when children refuse contact this is due to parents alienating their children from the other parent not due to the children’s own lived experience.

Community Sector Issues• Limited understanding of legal processes and

issues related to evidence• Approaches risk not just from position of

imminent harm and response but prevention and support

• Starts with what the client brings - primary purpose not collecting evidence

• Currently the identification of child protection issues isn’t seen as the role of family law services and often doesn’t happen

• Currently risk/safety assessment of family members from family law services is not available to the court

Child Protection Issues• Only the highest risk cases are seen –no role for

children below the threshold• Child Protection sees Family Court involvement as a

reason for their non involvement• Connection to the Community Sector can be poor-

lack of feedback re investigations • Child Protection can works in a silo - poor case

management/community sector/court connectivity• Little consideration of the length of time it takes to

get decisions in Family Court resulting in poor protection of children

• Practitioners at coal face often young and/or lacking experience

Family Court Issues• Excellent and timely information is critical to good judicial

decision making - not always available.• Based on adversarial processes - self represented litigants• Decisions are based on evidence - not all evidence carries

the same weight• All decisions must be explained with reasons related to the

law and based on Primary and Additional Considerations as outlined in the Act

• Reliant on expert witnesses – duty of impartiality is owed to the court

• Reliant on ICL or Consultant to represent the views of the child and their best interests

Where to From Here?

Some Options for Consideration and Discussion

Possible ImprovementsChildren

• Ensure safety assessments for all families and children• Ensure the views of children are always put to the court -

via consultants / ICL and court experts and are given due weight

• Children shouldn’t be referred for counselling in order to maintain contact with a perpetrator when the perpetrator doesn’t engage in services

Training• Training of Community Sector and Child Protection staff

on the decision making processes of the court• Training of judiciary on the effects of trauma on children

and perpetrator behaviour and its relationship to parenting styles

Possible ImprovementsCase Management• Use of case management- who should do this?

• Development of protocols for information sharing between courts, government departments and agencies

• Improved liaison between Family Court and Community Sector re case management of complex families

Possible ImprovementsChild Protection• Timely reporting back to the court of any Child

Protection intervention• Level of risk and not Family Court proceedings

should dictate involvement• Ensure only senior workers make decisions re

cases involving Family Court matters• Prompt feedback to Community Sector re

outcomes of referrals

Possible ImprovementsCourt Matters• Cross vesting of powers so one court can hear several

matters• More information being available at first court event or

ordered for the next event – ? ordering forensic assessment reports from agencies

• Less adversarial trial - more direction as to what information needs to be presented

• Clear guidelines for the appointment of experts and their qualifications (must have significant DV experience, understanding of trauma & attachment)

• Court expert reports need to be balanced against information provided by Community Sector agencies

Feedback

• What are your experiences of the Family Court, Child Protection and Community Sector systems interface?

• Are there improvements you would recommend?

QUESTIONS?