See procedure Federal Circuit and Family Court of Australia and the Magellan List for tasks that must be undertaken.
The Family Law Act 1975 (Cth) (Family Law Act) provides ways in which the Federal Circuit and Family Court of Australia and Magistrates’ Court of Victoria (when exercising family law jurisdiction) can make a report or request to Child Protection in relation to a child subject to family law proceedings in that court.
It is important for child protection practitioners to familiarise themselves with the Family Court and Federal Circuit Court protocol.
The Family Law Act provides for the Federal Circuit and Family Court of Australia and Magistrates’ Court of Victoria (when exercising family law jurisdiction) to make reports to the department pursuant to the following sections:
Section 91B orders
S. 91B of the Family Law Act states in any proceedings under this Act that affect, or may affect, the welfare of a child, the court may request the intervention in the proceedings of an officer of a State or Territory agency responsible for the administration of child welfare laws (in Victoria, this is the department).
Upon receipt of a s. 91B order, Child Protection must determine the most appropriate response to the Court’s request. Child Protection may intervene in family law proceedings and in doing so is deemed to be a party to the proceedings with all the rights, duties and liabilities of a party. This includes being able to file affidavits, call and cross examine witnesses, present expert evidence and have the right of appeal.
Section 67Z
S 67Z of the Family Law Act provides where an interested person in proceedings under the Family Law Act, alleges a child to whom the proceedings relate has been abused or is at risk of being abused, then that person must file a notice in the court hearing the proceedings in the prescribed form. The form is a Notice of Child Abuse, Family Violence or Risk. The Court must then notify a prescribed child welfare authority. An interested person is a party to the proceedings, an Independent Children’s Lawyer (ICL) or any other person prescribed by regulations.
Under the Family Law Act, abuse in relation to a child, means:
- an assault, including a sexual assault, of the child
- a person (the first person) involving the child in a sexual activity with the first person or another person in which the child is used, directly or indirectly, as a sexual object by the first person or the other person, and where there is unequal power in the relationship between the child and the first person
- causing the child to suffer serious psychological harm, including (but not limited to) when that harm is caused by the child being subjected to, or exposed to, family violence or
- serious neglect of the child.
Section 67ZA
S67ZA of the Family Law Act provides that where a member of the court personnel has reasonable grounds for suspecting a child has been abused, or is at risk of being abused, the person must, as soon as practicable, notify a prescribed child welfare authority of the suspicion and the basis for the suspicion.
S67ZA applies to a person in the course of performing duties or functions, or exercising powers, as:
- the Chief Executive Officer
- a Senior Registrar or Registrar of the Federal Circuit and Family Court of Australia
- a Registrar or a Deputy Registrar of the Family Court of Western Australia
- a family consultant
- a family counsellor
- a family dispute resolution practitioner
- an arbitrator, or
- an Independent Children's Lawyer (ICL).
A report made under s67ZA is usually made orally in the first instance, however, s67ZA(5) requires this must be followed by written notice confirming the oral notice has been given to the prescribed child welfare authority. The written notice must be submitted as soon as practicable.
When responding to a court about a report arising out of s 91B order, a s 67Z or a s 67ZA, Child Protection must do one of the following:
Register the report in the Client Relationship Information System (CRIS) as a new intake report and identify the reporter source as the Federal Circuit and Family Court of Australia or Magistrates’ Court of Victoria.
A response must be provided to the court in writing prior to the next scheduled hearing date, using the relevant template (Family Law templates) and explaining the outcome of the report, for example:
- Take no further action
- Investigate the report
- Information held which may be of interest to the Court.
- Issue Children’s Court proceedings.
- Seek leave to appear amicus curiae (friend of the court).
- Seek leave to join as a party to the proceedings.
It is important that early consideration is given to Child Protection participating in the family law proceedings and that this is done in consultation with line management and the Child Protection Litigation Office (CPLO). Practice support is also available from the department’s family law liaison program. Endorsement by a team manager is required for Child Protection to appear as a friend of the court and by the area operations manager or Director, Child Protection to intervene in the proceedings.
In cases where Child Protection chooses not to intervene in family law proceedings, there is no avenue for appeal if a decision is made which is contrary to Child Protection's opinion about the outcome. Child Protection should not issue Children's Court proceedings unless new protective concerns arise (please refer to Family Court and Federal Circuit Court Protocol ). If new protective concerns arise, consideration should be given as to whether those concerns can be addressed in the family law jurisdiction.
Upon receiving a report from the Federal Circuit and Family Court of Australia or Magistrates’ Court of Victoria (when exercising family law jurisdiction), Child Protection must record this as a report in CRIS and make a determination regarding the classification of the report in the same manner as other reports. In determining how the department should respond to a report, it may be necessary for Child Protection to request court documents from the court to determine whether the child may be in need of protection and if an investigation is necessary. Copies of parenting orders and other relevant court documents (for example, family reports, expert reports) can be obtained from the court using the prescribed form – Federal Circuit and Family Court of Australia- Request for Information Form.
Where the child is independently represented, Child Protection intake should contact the ICL prior to classifying the report. If it is unclear from the report whether there is an ICL appointed, this should be checked with the court by emailing the prescribed form to the relevant registry.
Further information about the procedures to be followed when interacting with the Federal Circuit and Family Court of Australia, is located in the protocol between the department and the Federal Circuit and Family Court of Australia. See Family Court and Federal Circuit Court Protocol.
Timelines following referral to Child Protection pursuant to s. 91B, s. 67Z or s. 67ZA
Wherever possible, the Federal Circuit and Family Court of Australia will set a return date which allows Child Protection sufficient time to adequately respond to the request or report.
Child Protection will usually require a minimum of 21 days to prepare a response. If there is inadequate time to prepare a response for the next hearing date, Child Protection must notify the court as soon as practicable in writing and prior to the date of the court hearing by writing to the relevant court registry. Child Protection should make all attempts to comply with the return date.
Generally (but not always), the Federal Circuit and Family Court of Australia will defer making a judgement on the case pending the department's response to the referral.
Wherever possible the Family Court and the Federal Circuit Court will set a return date which allows child protection sufficient time to adequately respond to the request.
Child protection will usually have a minimum of 21 days to prepare a response. If there is inadequate time to prepare a response in time for the next hearing date, child protection will notify the court as soon as practicable and prior to the date of the court hearing. However, child protection should comply with the request of return date.
Generally the Family Court and Federal Circuit Court will defer making a judgement on the case pending the department's response to the referral.
The Magellan List operates in Division 1 of the Federal Circuit and Family Court of Australia and was established to deal with parenting disputes involving allegations of serious physical and sexual abuse of children.
The Magellan List uses a case management approach with major features including the imposition of strict timelines, early ‘front loading’ of resources (such as the appointment of an ICL) and the provision of information from the department.
If Child Protection receives a report for a child who is on the Magellan list, the child protection practitioner will:
- Discuss the report with line management and the CPLO to determine whether the department should intervene in the family law proceedings. Secondary consultation is also available from the department’s family law liaison program .
- Make a decision regarding the investigation of the report in accordance with normal practice and the protocol.
- Provide written feedback to the Court (the Magellan Registrar) as soon as practicable after receiving the report, advising whether an investigation will occur.
Prepare a Magellan Report using the template included in the Magellan Tip Sheet. Part 6.3 of the protocol provides that if a family law dispute is added to the Magellan List, the Court will make order for written information from the department. The written information will be provided in the form of a report and will outline the following:
- whether the department seeks to intervene in the family law proceedings
- names of those interviewed for the report
- the department’s views regarding the risk to the child
- the reasons for decisions and actions
- consideration of the child’s best interests.
The Court usually provides ample time for an investigation and preparation of a report. If further time is required, the Court must be advised in writing with a date as to when the Magellan Report will be submitted. It is important that where possible, the Magellan Report is prepared in advance of the next scheduled hearing date.
The Family Law Act provides for the Federal Circuit and Family Court of Australia to make requests to the department pursuant to the following sections 67ZBD and 67ZBE that came into effect on 6 May 2024 as part of the Family Law Amendment (Information Sharing) Act 2023.
Under sections 67ZBD and 67ZBE of the Family Law Act, the Court can make an order requesting particulars, information and documents from State and Territory police and child protection agencies which relates to abuse, neglect, family violence or risk. This information supports the Court in making informed decisions in parenting matters.
Upon receipt of the documents or information provided under a section 67ZBD or 67ZBE order, the presiding judicial officer will determine whether the information is to be released to parties and legal representatives, and the conditions of that release.
Meaning of information sharing agency
S67ZBC of the Family Law Act defines the meaning of an “information sharing agency”. This ensures that the relevant agencies are identified and authorised to share information relevant to family law proceedings, particularly in cases involving family violence, child abuse and neglect. Under the Family Law Act an “information sharing agency” is State/Territory Child Protection, Police and/or Firearms.
Section 67ZBD – Order to provide particulars of documents or information relating to certain matters
The Federal Circuit and Family Court of Australia (and the Family Court of Western Australia) may make an order in child related proceedings requiring an information sharing agency (State/Territory Child Protection, Police and/or Firearms) to inform the Court whether the agency has in its possession or control any documents or information and if it has, give the Court particulars of the documents or information that relate to the following matters:
- Abuse, neglect or family violence to which a child to whom the proceedings relate has been, or is suspected to have been, subjected or exposed
- Family violence to which a party to the proceedings has been exposed, or in which a party to the proceedings has engaged, to the extent it may affect a child to whom the proceedings relate
- Any risk or potential risk of a child to whom the proceedings relate being subjected or exposed to abuse, neglect or family violence
- Any risk or potential risk of a party to the proceedings being subjected to, or engaging in, family violence, to the extent any such family violence may affect a child to whom the proceedings relate.
Particulars may include a summary, short description, overview or outline of documents or information held and the agency’s involvement with any persons identified by the order.
The s67ZBD order is often referred to as a ‘short form order’ or ‘order for particulars’.
Section 67ZBE - Order to provide documents or information relating to certain matters
The Federal Circuit and Family Court of Australia (and the Family Court of Western Australia) may make an order in child related proceedings requiring an information sharing agency (State/Territory Child Protection, Police and/or Firearms) to produce to the Court any documents, and give the Court any information, in the agency’s possession or control relating to the following matters:
- Abuse, neglect or family violence to which a child to whom the proceedings relate has been, or is suspected to have been, subjected or exposed.
- Family violence to which a party to the proceedings has been exposed, or in which a party to the proceedings has engaged, to the extent it may affect a child to whom the proceedings relate.
- Any risk or potential risk of a child to whom the proceedings relate being subjected or exposed to abuse, neglect or family violence.
- Any risk or potential risk of a party to the proceedings being subjected to, or engaging in, family violence, to the extent any such family violence may affect a child to whom the proceedings relate.
The s67ZBE order is often referred to as an ‘expanded order’ for documents and information.
Information sought under a s67ZBD and s67ZBE order may include:
- Notifications to the agency of suspected abuse of a child to whom the proceedings relate
- Notifications to the agency of suspected abuse, by a party to the proceedings, of any other child
- Records disclosing family violence, child abuse or risk of abuse
- Records and outcomes of completed or closed investigations
- Records of open, ongoing or current interventions
- Reports prepared by an expert or relevant practitioner, where commissioned by that agency and where sharing of the record would not prejudice ongoing legal proceedings or be otherwise protected material (for example, due to the operation of a court order).
Both information sharing orders can be issued by the Court at any point in proceedings (as per s67ZBJ of the Family Law Act). This provides flexibility, ensuring the Court can obtain information about family violence, child abuse and neglect risk at any stage of the proceedings.
Release, disclosure and admission into evidence
Particulars, documents or information provided by Child Protection to the Court in response to a s67ZBD or s67ZBE order will ordinarily be released to the parties and/or their legal representative to support the administration of justice. The Court will determine the terms and conditions of release depending on the individual circumstances of a matter.
The Court must admit into evidence any particulars, documents or information provided in response to an order made under s67ZBD or s67ZBE on which the Court intends to rely (s67ZBH Family Law Act).
Providing advice about risk of disclosure
When responding to a s67ZBD or s67ZBE order, Child Protection has an obligation under s67ZBG of the Family Law Act to provide the Court with advice about any risks to the following persons that the Court should consider when disclosing the particulars, documents or information:
- a party to the proceedings
- a child to whom the proceedings relate
- a person who communicated information to the agency in confidence, or
- any other person.
This advice is intended to support the Court to consider any risk when releasing the information/documents and balance this with principles of natural justice and procedural fairness.
See S67ZBG Template and S67ZBG Tip Sheet for further information.
Protected Material, section 67ZB(3)
In sharing information, Child Protection (and other state and territory information sharing agencies) and the Court must balance the risk to personal safety in releasing the information against the overarching purpose of information sharing and supporting decision-making in the best interests of the child in family law proceedings.
The following information is defined as protected material under s67ZBF of the Family Law Act:
- Legally privileged information
- Information that discloses, or would enable a person to ascertain, the identity of a person who communicated information to the agency in confidence (for example, a reporter)
- Information that if disclosed would endanger a person’s life or present an unreasonable risk of harm to a person.
- Information that would prejudice legal proceedings (including proceedings in a tribunal and coronial inquiry, investigation and inquest)
- Information that would contravene a court order or law that, disregarding s67ZBD(7) and s67ZBE(7), would restrict the publication or other disclosure of information in connection with legal proceedings
- Information that is contrary to the public interest.
It is not unlawful to provide protected material as defined under s67ZBF of the Family Law Act when responding to a s67ZBD or s67ZBE order. However, s67ZBF(1) does not require the agency to provide protected material. The Information Sharing Protocol encourages agencies to redact protected material in the first instance.
If protected material is redacted or withheld, the Court must be advised that the agency has not provided protected material and the type of protected material that has not been produced.
Whilst not considered protected material, Child Protection should not include the following:
- information not relevant to risk of harm to a child or party
- information about third parties who are not relevant to the family law proceedings nor pose a risk of harm to the child or party
The sharing of Child Protection information is highly sensitive. It is paramount that any dissemination of such information is conducted with the utmost consideration for the safety and wellbeing of all individuals involved in or affected by the sharing of the information.
Information shared must only be to the extent necessary to inform the Court about the following matters:
- Abuse, neglect or family violence to which a child to whom the proceedings relate has been, or is suspected to have been, subjected or family violence to which a party to the proceedings has been exposed, or in which a party to the proceedings has engaged, to the extent it may affect a child to whom the proceedings relate
- Any risk or potential risk of a child to whom the proceedings relate being subjected or exposed to abuse, neglect or family violence
- Any risk or potential risk of a party to the proceedings being subjected to, or engaging in, family violence, to the extent any such family violence may affect a child to whom the proceedings relate.
Secondary consultation is available from the Family Law Liaison Program and legal advice from the Legal Services Branch.
For a more comprehensive understanding of the changes made to the Family Law Act through the enactment of the Family Law Amendment (Information Sharing) Act 2023 (Cth) please refer to the Information Sharing Protocol.
There are several instances where families can be simultaneously involved in proceedings in both the Federal Circuit and Family Court of Australia and the Children's Court. This situation can arise where:
- Child Protection has issued proceedings in the Children’s Court and subsequently becomes aware of the proceedings in the Federal Circuit and Family Court of Australia
- Child Protection is aware of proceedings in the Federal Circuit and Family Court of Australia, however, decides that the Children’s Court is the most appropriate court to determine the protective concerns and issues proceedings in the Children’s Court
- a parent or interested person makes an application to the Federal Circuit and Family Court of Australia for orders in relation to a child when there are proceedings before the Children’s Court.
Upon learning that there are proceedings listed in both the Children’s Court and Federal Circuit and Family Court of Australia, child protection practitioners must advise the Federal Circuit and Family Court of Australia in writing of the existence of proceedings in the Children’s Court.
S 69ZK of the Family Law Act prevents the Federal Circuit and Family Court of Australia from making an order (other than a child maintenance order) if the child is under the care of a person under a child welfare law (in Victoria, the Children Youth and Families Act 2005 (CYFA) unless:
- the order is expressed to come into effect when the child ceases to be under the care of a child welfare law, or
- the order is made with the written consent of a child welfare officer of the relevant state or territory agency
If proceedings are on foot in both jurisdictions, the Federal Circuit and Family Court of Australia will often adjourn their proceedings pending a final determination being made in the Children’s Court.
Following receipt of a report (Notice of child abuse, family violence or risk, s 67ZA notification, s. 91B order or Magellan Order as discussed above) from the Federal Circuit and Family Court of Australia, Child Protection must prepare a response to the Court prior to the next listed hearing date.
Where the report is classified as a protective intervention report and insufficient time has been allowed by the Court to complete an investigation, that is, less than 21 days, or the matter is complex and requires further assessment, a letter must be sent to the Federal Circuit and Family Court of Australia advising of the need for further time and indicating the date the information will be provided to the court.
It should be noted that unless the department is a party to the proceedings it cannot formally seek an adjournment of the hearing. The Federal Circuit and Family Court of Australia does not have an obligation to adjourn a matter due to Child Protection being unable to provide a response by the listing date.
Where a decision has been made to close the report at intake and not investigate the concerns, the Federal Circuit and Family Court of Australia is to be advised in writing including the reasons for this decision.
Child Protection may respond to a report from the Federal Circuit and Family Court of Australia following an investigation in the following ways:
- issue a protection application
- inform the Federal Circuit and Family Court of Australia that Child Protection does not intend to intervene in the proceedings, but has information in which the Court may be interested
- inform the Federal Circuit and Family Court of Australia that Child Protection does not intend to take any further action.
Where immediate action is required to protect the child, Child Protection must determine if:
- a protection application will be issued, or
- a party will make an urgent application to the Federal Circuit or Family Court of Australia, for example, to vary contact arrangements from unsupervised to supervised. In this instance, the Federal Circuit and Family Court of Australia may make an order seeking information from Child Protection or request the intervention of Child Protection in the family law proceedings.
Choosing the appropriate jurisdiction is a complex matter and it is recommended that appropriate for Child Protection to consult with CPLO on the grounds for a protection application prior to its initiation. Secondary consultation is also available from the department’s family law liaison program.
Factors to be taken into consideration when determining the appropriate jurisdiction are:
- Is the child at risk of harm, and if so, by whom?
- Is there evidence to support a finding in the Children’s Court that a child is in need of protection under the CYFA?
- Is there a suitable carer or parent prepared to commence family law proceedings?
- Which jurisdiction can make the orders that the child and family will require?
A protection application should occur where Child Protection believes a child is in need of protection and the protective concerns are most appropriately managed in through the Children’s Court. A protection application should not be used as an avenue to resolve a dispute where it can be which can be resolved by the Federal Circuit and Family Court of Australia.
An order made in the Children's Court takes precedence over a family law order.
Family law orders will remain in force unless varied or dismissed by the Federal Circuit and Family Court of Australia, varied or suspended by a Magistrates’ Court making an Intervention Order or an order is made in the Children's Court.
Family law orders are not affected by Child Protection receiving or investigating a report.
Following an investigation, if Child Protection determines a child needs protection, a decision needs to be made about whether to intervene in any existing family law proceedings. This should be guided by what is required to protect the child, and consequently which jurisdiction, that is, the Federal Circuit and Family Court of Australia or the Children's Court, will best ensure the safety of the child.
There are many factors for consideration, including:
- How serious are the protective concerns?
- What is the likelihood of abuse occurring?
- Can the department abide by a decision that is not their preferred outcome?
- Is there a court appointed ICL representing the child’s best interests?
Direct intervention as a party to the proceedings should only occur where serious protective concerns are held and only then after careful consideration and consultation with the CPLO. Practice advice is also available from the department’s family law liaison program.
In all cases where the department intervenes in the proceedings they must be legally represented. Legal representation is arranged by CPLO. In most cases it will not be necessary for the department to intervene and become a party to the proceedings, but where there are protective concerns which may influence the outcome of the hearing, it may be appropriate for the department to appear amicus curiae (friend of the court) or be subpoenaed by the party who the practitioner believes can adequately protect the child.
Parties to a family law order may sometimes allege that the other party is placing the child at an 'unacceptable risk' and therefore believe there are 'reasonable grounds' to not comply with the court order. In such situations a party may believe it necessary to either deny contact or refuse to return the child to the other parent.
An order made by the Children's Court will take precedence over a parenting order made by the Federal Circuit and Family Court of Australia. Accepting a report or conducting an investigation does not and Child Protection has no legal authority to, authorise, advise or compel a person to not comply with a family law order.
The decision not to comply with a family law order is a decision to be made entirely by the party and preferably in consultation with their legal representative. Contravention of orders affecting children under the Family Law Act can have serious consequences and requires a reasonable excuse for the contravention.
S 70NAD of the Family Law Act defines what a reasonable excuse is. Child protection practitioners should not provide legal advice to a person about their obligations under the Family Law Act or whether their situation falls within
S 70NAD, however should encourage the party to seek independent legal advice.
- Documents may be served to the department with compressed response timelines for response. Best efforts should be made to comply with the requested return date.
- Child Protection should make a note on CRIS of the time and day that the report was received and the date of compliance.
- Always action court requests promptly as there is often only a short time allowed by a court to process them.