Obligation to Children in Family Law Matters

Mandatory reporting of abuse and neglect

Under Sections 17, 18, 30 and 31 of the Children and Young People (Safety) Act 2017 (SA):

Medical practitioners; pharmacists; registered or enrolled nurses; dentists; psychologists; police officers; community corrections officers under the Correctional Services Act 1982; social workers; ministers of religion; employees of, or volunteers in, an organisation formed for religious or spiritual purposes; teachers employed as such in a school or a preschool or kindergarten; employees of, or volunteers in, an organisation that provides health, welfare, education, sporting or recreational, child care or residential services wholly or partly for children and young people, being a person who – (i) provides such services directly to children and young people; or (ii) holds a management position in the organisation, the duties of which include direct responsibility for, or direct supervision of, the provision of those services to children and young people are mandated to notify the Department for Child Protection if they suspect, on reasonable grounds, that a child or young person is, or maybe, at risk of

1. Physical abuse;
2. Sexual abuse;
3. Mental or emotional abuse; and/or
4. Neglect, and that this suspicion has been formed in the course of the person’s employment.

Obligation to the children

Under Section 60B of the Family Law Act 1975:

The best interests of children are met by:

1. ensuring that children have the benefit of both of their parents having a meaningful and significant involvement in their lives, to the maximum extent consistent with the best interests of the child; and
2. protecting children from physical or psychological harm from being subjected to, or exposed to, abuse, neglect or family violence; and
3. ensuring that children receive adequate and proper parenting to help them achieve their full potential; and
4. ensuring that parents fulfil their duties, and meet their responsibilities, concerning the care, welfare and development of their children.

Unless it is, or would be, contrary to a child’s best interests:

1. children have the right to know and be cared for by both their parents, regardless of whether their parents are married, separated, have never married or have never lived together; and
2. children have a right to spend time on a regular basis with, and communicate on a regular basis with, both their parents and other people significant to their care, welfare and development (such as grandparents and other relatives); and
3. parents jointly share duties and responsibilities concerning the care, welfare, and development of their children; and
4. parents should agree about the future parenting of their children; and
5. children have a right to enjoy their culture (including the right to enjoy that culture with other people who share that culture).

 

Clinical legal service delivery

1)    Criminal Jurisdiction The Criminal Jurisdiction focuses on whether someone has behaved in a way toward a child that offends and breaches the Criminal Law, in which he or she could be charged with a criminal offence (e.g. assault) – the adult is on trial here, and the ultimate issue to be considered by that Court is whether that adult person actually committed that offence in terms the statutes set out. 2)    Children and Youth Jurisdiction The Children and Youth Jurisdiction primarily looks at the welfare, safety, and protection of the child, and considers the question: “Does this child require the protection of the state in the short term or long term?” – the welfare of the child is on trial here and ultimate issue here is whether this child requires the protection of the state. 3)    Family Jurisdiction The Family Jurisdiction focuses on the relationship between the parents and the child – the parent-child relationship is on trial here and the ultimate issue to be decided by the Court is what is the most appropriate relationship for the child with each parent and significant other people.

 

There are 3 legal jurisdiction that cover the clinical service delivery. Each jurisdiction deals with their own set of legal matters, and addresses a different ultimate issue and set of questions.

In accordance with the Australian Family Law Act, a child is entitled to a meaningful and substantial relationship with each parent (biological or other), and each parent is entitled to a meaningful and substantial relationship with each child.

In accordance with State child and child protection law, a child is entitled to be protected from neglect, harm and exploitation.

There are two set of laws, two different jurisdiction, and two different levels of government: State and Federal. Clearly, these different laws contradict each other in some matters. Such contradictions can be resolved by understanding the function and role of each jurisdiction, and the relationship of each jurisdiction to the other.

In practical terms, child protection considerations ordinarily take precedence over parent-child relationship considerations. Child abuse ordinarily implies a child protection matter. As such, Family Law ordinarily privileges the legal processes of child protection over the legal processes of the parent-child relationship. One ordinarily comes before the other. The protocols of a child protection ordinarily expect that the more functional, non abusive parent, act decisively, often unilaterally, to protect the child from the abusive parent. The protocols of family law demand that neither parent unreasonably or unnecessarily obstruct the relationship between the child and the other parent, and to the very best of their ability, support and facilitate the relationship between the child and the other parent. This becomes a delicate balancing act for those adults and children caught at the crossing point of these two legal jurisdiction, sometimes in, what appears to be, a no win situation.

This fundamental assumption is applied in the Family Court and the Federal Magistrate’s Court through the application of the Family Law. The Family Court is unlikely to intervene if the Youth Court is not going to intervene. Family Law will defer to Criminal Law and Child Protection Law when either or both are active.

For a child not to have a meaningful and substantial relationship with their parent, or vice versa, something extremely serious of a child protection nature needs to have occurred to constrain or stop that relationship (e.g. behaviours and/or offences towards children).

Process at Bower Place

When a child or young person discloses safety concerns:

1. Should a child or young person disclose of safety concerns or that they feel unsafe and/or scared around either or both their parents/carers, their disclosure will be taken seriously and acted upon imminently.
2. Bower Place will not allow a child or young person to leave with their parent(s) or carer(s) should they disclose any safety concerns.
3. If the child or young person is in imminent or immediate danger of serious harm, serious injury, and/or chronic neglect, Bower Place will call the child abuse report line (CARL) immediately.
4. If the child or young person is suspected to be at risk of harm or neglect but is not in imminent or immediate danger, Bower Place will lodge a CARL report online.
5. Considering both the obligations of Bower Place and the clinical legal service delivery at Bower Place, and if there are no Family Court orders in place, the child or young person will be advised to be in the care of the parent/carer whom the child or young person feels safe with. This parent/carer can organise supervised access for the other parent if they consider it feasible.
6. Supervised access can be facilitated by the parent/carer that the child is under the care of or by another person deemed by this parent/carer to be responsible.

 

Rapid process of resolution

1. Bower Place believes that, as stated in the Family Law Act 1975, children are entitled to a meaningful relationship with both biological parents, and to be protected from harm.
2. Once the children are protected from harm, Bower Place moves towards allowing the children to have a meaningful relationship with both biological parents.
3. Conversations will be held with individual child and parent to address areas of concerns to ensure the process move quickly to allow for children to have a meaningful relationship with their parents.
4. During this process, it is important that:
   • neither parent is being undermined in front of the child or young person;
   • the child or young person should not be subjected or exposed to abuse, neglect and/or family violence; and
   • the child or young person should not be placed in any situation where they become or may feel unsafe.