By Nicole Berkovic, October 8, 2014
A REVIEW of whether family law judges should be given powers to remove children from parents who abuse or neglect them will be announced by Attorney-General George Brandis today.
Senator Brandis will ask the Family Law Council to explore whether family law judges should be given similar powers to the state children’s courts to make orders for the care and protection of children.
The move could result in commonwealth family law judges being able to force state welfare authorities to intervene in cases where they believe neither parent is capable of looking after a child.
A Family Court judge says the current system is “fundamentally flawed” because vulnerable children are slipping through the cracks between state and federal court systems.
Family Court judge Robert Benjamin will tell a conference on Friday that family law judges are unable to force state welfare authorities to intervene to protect a child. “This system is fundamentally flawed and some children caught in the constitutional lacuna are left exposed to abuse, neglect and family violence,” Justice Benjamin will say.
In his speech, he will refer to a case in which he had asked Tasmanian welfare authorities to intervene in a dispute relating to a 15-year-old boy and his nine-year-old sister, who had allegedly been sexually abused by her uncle.
The mother allegedly had drug, alcohol and emotional problems, while the father had allegedly been violent towards the mother.
There were also concerns the girl was at risk of being sexually abused by her brother.
Justice Benjamin asked the Tasmanian Department of Health and Human Services to intervene. However, it refused to do so and said it was unwilling to accept any parental obligations imposed by the Family Court.
The full Family Court ruled on appeal that Justice Benjamin had no power to force the state government to intervene.
In his speech, Justice Benjamin says if “all else fails”, one option is for family judges to simply refuse to make any parenting orders in a case, hoping that such a scenario would force state welfare authorities to intervene, but this would carry risks.
Senator Brandis will ask the Family Law Council to examine whether changes can be made to make it easier for cases to be transferred between family and children’s courts, or for family law courts and children’s courts to have overlapping powers.
The review will also look at whether there can be greater collaboration and information sharing between the family law courts and other services, including child protection, mental health, family violence, drug and alcohol, Aboriginal and migrant settlement services.