Update on Family LawAnne Demack

Federal Circuit CourtCQLA Conference, 2013

SUGGESTED WATCH LIST ORDER - AFP FAMILY LAW KIT

1. a. Each of [insert name(s) of party or parties to be restrained] and their servants and agents be and is/are restrained from removing or attempting to remove or causing or permitting the removal of [insert names, birth dates and sex of relevant children] from the Commonwealth of Australia. 1. b. [Insert name(s) of child or children] be and is/are hereby restrained from leaving the Commonwealth of Australia.

2. It is requested that the Australian Federal Police give effect to the preceding order by placing the name(s) of the said child or children on the Watch List in force at all points of arrival and departure in the Commonwealth of Australia and maintain the child or children’s name(s) on the Watch List for a period of two years (or insert specified different period). 3. Upon expiration of the period referred to in Order 2 and subject to any further order of a court of competent jurisdiction, the Australian Federal Police will cause the removal of the child or children’s names from the Watch List.

FAMILY LAW AMENDMENT (FEES) REGULATION 2013 (FED)

This regulation amends the Family Law (Fees) Regulation 2012 to provide an exemption for independent children’s lawyers from paying court fees relating to issuing subpoenas and applying for interim orders in family law proceedings.

The Regulation and Explanatory Statement can be viewed at:http://www.comlaw.gov.au/Details/F2013L01243

Rule and process in respect of release of family reports

The legal committee has been considering a proposed amendment to Rule 23.01A to permit wider access of Family Reports to a child protection authoritya children's courta State or Territory legal aid authority.

The proposal is consistent with recommendations of various committees who have considered the utility in the sharing of experts reports. Currently there is a Taskforce convened by AGD and Chaired by Professor Chisholm looking at issues surrounding possible sharing of experts reports in the context of the child protection authorities. The Taskforce has been made aware of the proposed amendment to Rule 23.01 and comment has been sought from them as well as the FCoA and National Legal Aid.

Vexatious Litigants Provisions 11 June 2013

s 118 and s 102Q - 102QG Family law Act 1975 ss 88N-88V Federal Circuit Court of Australia Act 1999

· The federal courts already have existing general, injunctive and other powers to deal with vexatious litigants. The new provisions do not detract from these existing powers.

· Different consequences flow from being declared vexatious in family law proceedings as opposed to GFL proceedings. An order made under s 118 FLAct has the consequence of prohibiting a person from institution proceedings (or proceedings of a particular kind) in any court exercising jurisdiction under the FLA except with leave. In GLF proceedings new section 88S merely precludes the person the subject of the order from instituting proceedings in the FCC without leave.

· There is a new provision whereby a person may apply to the CEO for a certificate advising whether or not an individual has been the subject of a vexatious proceedings order.It is envisaged that such certificates will be sought by person who may wish to seek a vexatious proceedings order against that person in another court (see s 88R)

RulesThe Federal Circuit Court Rules 2001have been amended to reflect these legislative amendments. Rule 13.11 deals with the form of request for a certificate pursuant to s 88R. Rule 13.11A addresses the form of an application under s 88T.

Section 106A orders - in the context of Passport Act applications

The issue have been raised as to the appropriateness of requiring registrars to sign applications for Australian passports pursuant to orders made invoking Section 106A.

Contact has been made with DFAT who have advised that the signature of a registrar in such circumstances is of no legal force or effect. It is in practice ignored and has no weight in the determination of whether the passport will issue.

DFAT rely on the legislative provisions of the Australian Passports Act 2005 In making an order permitting a child to travel internationally, it is permissible to request DFAT to issue the passport with the consent of one parent.

Passport - Child - Permission to apply for a passport - Order

That [name] may apply for a passport for [name and date of birth] without first obtaining the consent of [the child’s father/mother].

Notes: This form of order on its own may not allow the authority to issue a passport for the child, and thus it should normally be combined with order 2, below. The Australian Passports Act 2005 provides in s 11(1) a passport should not issue unless each person who has parental responsibility for the child consents to the child travelling internationally; or a court order permits the child to travel internationally. This order should normally be accompanied by an order to the effect that the Registry Manager, the Judge’s Associate, or some other Court officer should provide a copy of the orders to [the appropriate person in DFAT]

see also brochure on FLC website which includes the following information for litigants

Applying for a child’s passport

http://www.familylawcourts.gov.au/wps/wcm/connect/FLC/Home/Publications/Family+Law+Courts+publications/Children+and+international+travel+after+family+separationBefore an Australian passport can be issued, the law requires the written consent of each person who has parental responsibility for a child. This is usually the child’s parents but may include grandparents or other relatives.

If written consent is provided by all parties with parental responsibility, applications can be lodged at an authorised Australia Post office or any Australian Passport Office.

If written consent is not provided by all parties with parental responsibility, you can make a written request to the Approved Senior Officer of the Department of Foreign Affairs and Trade to consider issuing the passport due to ‘special circumstances’. For more information about requests to consider ‘special circumstances’ contact the Australian Passport Information Service on 13 12 32 or go to www.passports.gov.au.

If your request to consider ‘special circumstances’ is not successful, you can apply to the Court for an order permitting a child to travel internationally. In considering such applications, the Court will only permit a child to travel internationally if it determines it is in the best interests of the child.

Editing ex temp judgments

The guiding principles would appear to be found in Bromley v Bromley (No 2) [1965] P 111 where Danckwerts LJ said at 116:

The general principle must be that this court must accept as the authentic record of the judge’s judgment that which has been approved by him after consideration of the draft produced by the shorthand writer. It is not only a question of possible mistakes by shorthand writers, who do their best extremely well, but are sometimes unable to hear exactly the words used by the judge in the course of his judgment. There are other cases which arise through the judge not saying clearly what he meant, or indeed sometimes by a slip saying something which he cannot possibly have meant. After all, an ex tempore judgment is not always easy to deliver perfectly in all respects on the spur of the moment; there must be corrections which need to be made so as to give the real meaning of the judge, and he is perfectly entitled, so it seems to me, not only to correct mistakes, but to alter words which do not express his intended meaning at the time when he uttered them.

Note also, Bar-Mordecai v Rotman [2000] NSWCA 123 at 193 where the New South Wales Court of Appeal said

"… So long as the substance of the ex tempore reasons is not altered, nor the orders which they sustain, there is no bar to revision, even if it is extensive."

Special Leave Applications

A relocation case - special leave application decided by the High Court on 26 June 2013 - Farmer v Rogers [2013] HCASL 99. The application was from the decision of the Full Court, Ferres & Reilly (No. 2) / Farmer & Rogers (No. 2) [2012] FamCAFC 207. The application was dismissed.

Property Proceedings (re litigation guardian) special leave application decided by the High Court on 21 June 3013 - Forster v Forster [2013] HCASL 98. The application was from the decision of the Full Court, Flowers & Flowers (No. 2) / Forster & Forster (No. 2) [2013] FamCAFC 21. The application was dismissed.

QPILCH - funding

…. the Australian Government will be rolling this scheme out nationally, with $4 million allocated over four years to support unrepresented litigants in civil law matters in the Federal Court and Federal Circuit Courts across our nation. Assistance will be available to unrepresented litigants in a wide range of civil law matters, including in social security, discrimination, consumer law, judicial review, bankruptcy, and employment law matters. There will also be a focus on early resolution and mediation of disputes. In addition, the scheme will help divert potentially frivolous or vexatious actions away from the Federal Court and Circuit Courts, lessening the burden on those courts.

Under the scheme, we anticipate that eligible applicants would be given appointments with a solicitor at various stages of a proceeding, who would provide them with legal advice, assist them to prepare court documents and correspondence, while also helping the individual to understand the legal system, court rules and alternative options for resolving their dispute. The service would also assist litigants to secure the services of a pro bono counsel for the hearing, subject to pro bono eligibility criteria.

Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence

Please click on the links below to see the resources that have been developed by the Department of Communities, Child Safety and Disability Services to assist legal practitioners/self-representatives/agencies assisting parents, to complete Form 4 Notice of Child Abuse, Family Violence or Risk of Family Violence. It is also hoped that these guidelines will provide greater clarity regarding what information may assist the department in responding to Form 4s in a timely and efficient manner.

Form 4 description of terms – QLD fact sheet as at 5 June 2013Form 4 guidelines – QLD fact sheet as at 5 June 2013

Should you require any further clarification please contact Tina Foti at tina.foti@communities.qld.gov.au

Response by the Department of Communities, ChildSafety and Disability Care to information received aboutharm or risk of harm to a child

This document has been developed to provide practitioners and self-represented parties with an overview of the steps taken by the Department of Communities,Child Safety and Disability Services (the department) following receipt of information about harm or risk of harm to a child.All children have the right to be safe and protected at all times. The Child Protection Act 1999 provides authority for the department to intervene where a child has been, or is at risk of being harmed.

What is harm?

The Child Protection Act 1999 defines harm as any detrimental effect of a significant nature on the child’s physical, psychological or emotional wellbeing. Harm can be caused by physical, psychological or emotional abuse or neglect, or sexual abuse or exploitation.

When is a child in need of protection?

The Child Protection Act 1999 states that child is in need of protection when a child:· has suffered harm, is suffering harm, or is at unacceptable risk ofsuffering harm; and· does not have a parent able and willing to protect the child from the harm.

How does the department receive child protection concerns?Every day, the department receives a large number of child protection concerns from arange of sources, including service providers, relatives, family, friends and those mandated to notify, including:authorised officers, employees of the department or persons employed in a departmental care service or licensed care service (Child Protection Act 1999,section 148)

· staff of the Commission for Children and Young People and the Child Guardian (Commission for Children and Young People Act 2000, section 25 (2))· doctors and registered nurses (Public Health Act 2005, section 191 and 192)· Family Court personnel and counsellors (Family Law Act 1975, section 67ZA).The majority of these concerns are received via a regional intake service (phone 137 468) or Child Safety After-Hours Service Centre (phone 3235 9999 or free call 1800 177 135).Within the family law system, some notifications are received via Form 4 Notices of child abuse, family violence or risk of family violence.

How does the department assess child protection concerns?

The department identifies three types of responses to reports of child protection concerns:

· Intake Enquiry· Child Concern Report· Notification

An Intake Enquiry may be a request for information or relate to child welfare issues or child protection concerns where no identifying details are provided.

A Child Concern Report is recorded when the alleged harm is not serious enough for the department to undertake an intrusive investigation. An officer may respond to a Child Concern Report by:· Providing information and advice to the notifier; and/or· Making a referral to another agency; and/or· Providing information to the police or another state authority.

A Notification is recorded when the child protection information received meets the legislative threshold of harm or risk of harm and it is reasonably suspected that a child is in need of protection (Child Protection Act 1999, sections 9, 10 and 14).

The department has the statutory authority to investigate allegations that a child has been harmed or is at risk of harm, assess a child’s need for protection or take other actions considered appropriate(Child Protection Act 1999, section 14).

The department’s response to all Notifications isthe completion of an investigation and assessment to determine if the child is a child in need of protection.

Types of departmental intervention

Following an investigation and assessment, the decision about whether there will be ongoing intervention is guided by the following requirements:

· ongoing intervention is required for any child who has been assessed as being in need of protection· ongoing intervention is offered to pregnant women when it is assessed that anunborn child will be in need of protection after birth· ongoing intervention is not required for any child who has been assessed asnot being in need of protection, but will be offered to the family where thereis a 'high' outcome on the family risk evaluation.

The decision about the type of ongoing intervention takes into consideration what is required to:· meet the child's protective and care needs· reduce the likelihood of future harm to the child

There are three types of ongoing intervention cases:

1. A Support Service Case· an investigation and assessment has determined that a child is not in need ofprotection, however, the outcome of the family risk evaluation is 'high'· an investigation and assessment has determined that an unborn child is likely tobe in need of protection after birth· a young person who has transitioned from care requires ongoing support andassistance following their eighteenth birthday.

2. Intervention with Parental Agreement (IPA)

· IPA enables the department to provide support and assistance to a child in need of protection and their family, without the use of a court order. In these circumstances the parents would have agreed to work with the department and they have been assessed as both able and willing to do so.

· IPA is generally of a short-term nature and it must be safe for the child to remain at home. While the child will usually remain in the home for all, or most of, theintervention period, they may be placed in out-of-home care with the use of a child protection care agreement, if required.

3. Child protection orders· Supervision Order· Directive Order· Short-term custody order (up to 2 years)· Short-term guardianship order (up to 2 years)· Long-term guardianship order to the Chief Executive (until 18th birthday)· Long-term guardianship order to a third party (until 18th birthday).

Case planning

Every child subject to intervention by the department must have a case plan. The case plan provides a clear statement about why the child or young person is in need of protection and the roles and responsibilities of all participants in addressing their protection and care needs. Case planning is about mapping a way forward for a child or young person. Case plans are goal directed and clearly identify outcomes, key actions and how the progress of the plan will be measured. The Childrens Court cannot grant a final child protection order unless an appropriate case plan has been prepared for a child.

The initial case plan for a child or young person is developed at a Family Group Meeting (FGM). This is an inclusive and participative process that includes the child, young person, their family and other significant people in the development of the case plan (for example recognised entity, school, foster parents etc).

Recognised entities

Under the Child Protection Act 1999, section 6, the department is required to work with a recognised entity when making all decisions about an Aboriginal or Torres Strait Islander child. In accordance with the Child Protection Act 1999, section 6(1) and (2), the department is required to either:

· provide the recognised entity with an opportunity to participate in the decision-making, where the decision is significant; or· consult with the recognised entity on all other decisions.

Reunification

Reunification is not just defined by the child's actual return to their family. Reunification is the process of reconnecting children and young people in out-of-home care with their families by providing services and supports to the child, their family and their carers. It is a dynamic process that begins as soon as children are placed in out-of-home care, and ends when they return home and the family is no longer in need of ongoing intervention. The Child Protection Act 1999 outlines the following principles that relate to reunification of a child or young person with their family:

· A child's family is the preferred permanency option wherever possible.· Most families can care for their children if assisted.· Reunification requires collaborative case planning by the department workingwith the child, family members and other persons, such as Recognised Entities, approved carers, and other government and non-government agencies.

When reunification is not possible, stable long-term placement options for the child need to be identified in a timeframe that considers the child's age and needs.

Guidelines for completing Form 4 – Notice of Child Abuse,Family Violence or Risk of Family Violence

These guidelines have been developed to assist practitioners and selfrepresentedparties to understand what information should be included in a Form 41 Notice to assist the Department of Communities, Child Safety and Disability Services (the department) to make an assessment about current risk of harm to the child.

When the department receives comprehensive and clear information early in proceedings about child protection concerns, it can make an informed assessment about the current risk of harm to the child or children involved. This assists the department to take appropriate action to ensure the child’s safety (where required) and/or ensure that the Court receives relevant child protection information relating to the proceedings.

A Form 4 Notice comprises Parts A – I. This information sheet givesguidance to practitioners and self-represented parties on how to complete each of these Parts.

This information sheet should be read in conjunction with anotherinformation sheet available from the department: Response by theDepartment of Communities, Child Safety and Disability Services toinformation received about harm or risk of harm to a child.

Parts A – D

These sections are administrative and require the party completing theform to provide identifying information about the notice, parties to proceedings and child to whom the allegation/s relate. Refer to the model policy for further guidance on these sections.

Part E – About the Alleged Abuse, andPart G – About the Alleged Family Violence

In these parts, the party completing the form must describe any acts or omissions that are alleged to constitute abuse (Part E) or Family Violence (Part G).Listed below are some key issues that should be addressed to enable thedepartment to assess whether a child protection response is required.

What happened?You should succinctly describe each alleged event, including relevant contextual information set out below.

When did each alleged event occur?It is important that timeframes for events are recorded as accurately as possible. The department needs to know whether the alleged event:· Is happening now· Is recurring (and when it most recently occurred)· Occurred before (when?)

If the exact timeframe is not known, include an estimate (for example,Easter 2012).

Did the party completing the form witness the event?You should advise whether the party completing the form witnessed the alleged event firsthand, or whether the information was given to them by another person.

Was anyone else present?If another person witnessed the alleged event, this information should be recorded.

How did the child react to the incident?The child’s reaction to the alleged event should be recorded. This information maycomprise:· the party’s own observations· another person’s observations· information disclosed to the party by the child or another witness

Has each alleged event been reported to the relevant Regional Intake Service of the department?If the party completing the form is aware that their concerns havepreviously been reported to the department (either by the party oranother person), they should record it on the form as this nformationmay assist the department in assessing the child’s current risk of harm.

However, in these situations the identity of the previous notifier/sshould not be disclosed on the form as section 186 of the ChildProtection Act 1999 protects the confidentiality of a person who makes a notification of abuse or neglect.

What steps (if any) has the party taken to protect the child?The party completing the form should report what actions they have taken (either directly or indirectly) to protect the child. This may include engaging relevant services and/or appropriate support networks.Has the department been previously involved with the family?This may include Court Orders, agreements or any other services.

Part E – About the Alleged Risk of Abuse, and Part H – About the Alleged Risk of Family Violence

When completing this section, the party should describe the facts that constitute any alleged risk of abuse (Part E) or Family Violence (Part G).It is critical that the department receives information about whether the child is presently at risk of harm. The department uses this information to make an assessment about whether a departmental response is required.The department will not intervene where proper arrangements exist, or can be made, for the care and protection of the child and where the suspected abuse or neglect can be adequately addressed within the family environment.To ensure that the department has sufficient information to make an informed assessment of the child’s current risk of harm, the party completing this form should include the following information (where possible).

Are the concerns ongoing?The party completing this form should report whether the alleged abuse or family violence was a single incident or is part of a pattern of behaviour. This may include:· whether there have been a number of related concerns occurring over a period of time, which may continue to pose a risk to the child; and· the frequency of the act, omission or behaviour of concern.Are any agencies currently involved with any of the parties?Not all concerns will require a statutory child protection response. The party completing this form should report:· whether the family is currently receiving any services in response to the alleged abuse or family violence· whether the party believes that the services are supporting the family to address the concerns relating to the alleged act or omission?

What arrangements are currently in place for the care and protection of the child?The party completing this form should report what care and protection arrangements (if any) have been put in place in response to the alleged abuse or family violence. Does the party believe that varying these arrangements would expose the child to further risk?

These guidelines do not constitute legal advice. They have been developed by the Department of Communities, Child Safety and Disability Services for information purposes only. Department of Communities, Child Safety and Disability Services always recommends that individuals seek independent legal advice.For further information, go to:Website: http://www.communities.qld.gov.au/childsafetyEmail: info@childsafety.qld.gov.auPhone: 1800 811 810 (Queensland only) or 3224 8045