December 21, 2008
FAMILY Court judges may be given the power to decide that children are better off in foster care instead of granting either parent custody as part of a range of options being considered by the Federal Government.
Attorney-General Robert McClelland wants the Family Court and state welfare agencies to work together more effectively. In an interview with The Age he said there was a "fracture" between them. The court made decisions about which parent should have residence or access but "the reality is it's not uncommon for both parents to be effectively dysfunctional".
"Quite often, Family Court judges are required to give access and residence to the least worst option and I think we need to certainly explore giving them additional options," he said.
Mr McClelland said there should be greater collaboration between the Family Court and state community services departments.
Giving the Family Court the power to determine all matters relating to the welfare of children would be legally complex, as the child protection system is managed by the states. But linking the two would make sense, as many matters that go to the Family Court involve substance abuse issues or allegations of violence and abuse.
"It's not easy. It's complex, it involves constitutional issues but it's a very important issue and one we're working on," Mr McClelland said.
"We're certainly exploring whether that can be done and indeed whether it is something that the states would regard as desirable in terms of referring powers to the Family Court."
Mr McClelland has asked his department for advice on options, and said he would take the matter up with his state counterparts in the first half of next year.
"In circumstances where child welfare matters are central to issues relating to family break-up my instincts are that most states say it makes sense," he said.
Currently, state welfare authorities seek child protection orders through the Children's Court, which has been overwhelmed with such cases and has experienced long delays. Mr McClelland said at the very least the Family Court should have greater access to information that is considered by state welfare authorities.
Former chief justice of the Family Court Alastair Nicholson has for years been lobbying for Family Court judges to be able to deal with child protection matters.
"I think it's a terrific idea," he said. "There should be an attempt to unify the system so that the one court can deal with all of these issues."
Mr Nicholson said the concept of granting custody to the "least worst" parent was well known in family law. There had been cases where a child who had been subject to a Family Court matter ended up in the child protection system.
"If you have a situation where both people (parents) are that bad, it's inevitable that it's going to come to the attention of child protection authorities, but it might come too late."
Family Court may gain foster care option watoday.com.au