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Family Law and Child Protection: The Jurisdictional Differences

The child protection system in Australia has been under the spotlight recently following calls by the Shadow Federal Minister for Indigenous Australians, Senator Jacinta Nampijinpa Price for the Federal government to take over responsibility for child protection.

Under existing arrangements, the family law system and child protection system are separate entities within Australia, with different jurisdictions responsible for each. The Australian federal government has jurisdiction over family law, while the state and territory governments have jurisdiction over child protection.

Family Law

Family law in Australia is governed by the Family Law Act 1975 (Cth), which is federal jurisdiction. The Federal Circuit and Family Court of Australia is the Court which has jurisdiction in relation to family law matters.

Under the Family Law Act, the Federal Circuit and Family Court of Australia has jurisdiction over matters related to (but not limited to):

  • Divorce and separation;
  • Parenting arrangements for children; and,
  • Family law property matters.

Only certain people have standing to file in the Federal Circuit and Family Court. For parenting matters this includes the parents, grandparents, other family members, and persons concerned with the care, welfare, or development of the child. Parties must also have a sufficient connection to Australia to file an initiating application.

Child Protection

Child protection in Australia is primarily governed by state and territory legislation, with each state and territory having its own child protection system. In Victoria, for example, the child protection system is governed by the Children, Youth and Families Act 2005 (Vic).

Under the child protection system, state and territory governments have the responsibility to protect children who are at risk of harm or who have been harmed. This includes:

  • Investigating reports of child abuse or neglect;
  • Removing children from unsafe environments;
  • Providing support and services to families to prevent further harm to children; and,
  • Providing care and protection for children who cannot live with their families.

The courts that deal with child protection matters are state and territory courts, such as the Children’s Court of Victoria. These courts have the power to make orders to protect children, including orders for child protection, care, and supervision.

The child protection Courts may only consider initiating applications made by the relevant state or territory child protection department, for example the Department of Families, Fairness, and Housing (‘DFFH’) in Victoria. Other parties, such as parents, may still make applications to vary or revoke existing orders in certain circumstances.

Being a state or territory jurisdiction, child protection matters can become complex if the matter begins to involve interstate travel or interstate safety concerns. For instance, a Permanent Care Order (a child protection Order) made in the state of Victoria will require registration with the Federal Circuit and Family Court to have effect nationally.

Differences between Jurisdictions

The main difference between family law jurisdiction and child protection jurisdiction is the types of matters they deal with. Family law jurisdiction deals with matters related to the breakdown of relationships and the care of children after separation, while child protection jurisdiction deals with matters related to the protection of children from harm. Family law is managed federally, whilst child protection is managed by states and territories.

It is worth noting that so long as child protection proceedings are on foot, the Federal Circuit and Family Court may not commence proceedings in relation to Family Law.  Additionally, the Federal Circuit and Family Court communicates with the local child protection authority on certain issues of safety, requesting reports regarding the safety of the child. In exceptional circumstances, the local child protection authority may join as a party to proceedings in the Federal Circuit and Family Court.

If you are currently facing Federal Circuit and Family Court proceedings or Child Protection proceedings, please call our office at 03 9670 4122 to arrange an initial consultation.

By Nicholes Family Lawyers


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