Lynn Armstrong, Senior Associate and Accredited Family Law Specialist
Is your family situation one where child protection proceedings have commenced but nothing seems to be happening? Or one where you are in Children’s Court for matters you believe are more family law related? It may be that your situation is one where family law proceedings are more relevant to your actual issue, and you are “trapped” in the wrong jurisdiction.
In family law there are often situations which involve both federal courts (such as family law matters) and state courts (such as child protection proceedings). When this happens, there can be argument as to which court is the most appropriate.
A long held (but not always correct) view is that the state courts, exercising the child protection proceedings, have the ultimate jurisdiction. The reason that this is not always the correct view is that if the Children’s Court proceedings have an order which is not deemed to be a child protection order for the welfare of a child “under the care of a person under a child welfare law”, the judge of either the Federal Circuit Court or Family Court can order a contrary order with jurisdiction. To determine this you need to look at the type of order you hold.
If the order from the Children’s Court is a directive order or protective supervision order – which usually simply direct the parties as to how the time of one parent occurs – this may not in fact be classed as a “child protection order” and when this occurs, the Family Law Courts can be applied to for contrary orders.
This may enable the parent seeking the time to seek a family report (rather than social assessment report) which can look at all of the best interests of the children pursuant to section 60CC of the Family Law Act. The requirements for the best interests of the child are different and may assist your case, as opposed to the different matters the social assessment reports look at.
Another benefit to a family report being ordered by the Family Law Courts is that the parties have more of an opportunity (if privately funded) to choose a report writer or be part of the choosing process. As well, the parties can ensure that all of their court documents and relevant materials are provided to the report writer, whereas the Department of Communities (Child Safety) staff usually arrange and provide details and documents to the social assessment report writer, often without a lot of inclusion of the views of the parties.
This is certainly available to parties, and can be a treacherous area to enter without the proper assistance to calm the waters and head you in the right direction. Make sure you see a solicitor with the appropriate experience and expertise in this interesting, but sometimes difficult area. Contact me, Lynn Armstrong, at Best Wilson Buckley’s Toowoomba office on 4639 0000 to make an appointment and discuss your personal situation.