Role of states and Commonwealth

The primary responsibility and power to make laws and decisions about child welfare, care and protection falls to the states and territories as part of their residual jurisdiction under the Australian Constitution.

In each Australian state and territory there are various government and non-government agencies concerned with the safety, welfare and wellbeing of children that provide child protection services for children experiencing or at risk of abuse or neglect. In NSW, the principal government agency is the NSW Department of Family and Community Services (FaCS).

In NSW, FaCS conducts investigations into child abuse allegations, including those made in the course of Family Court proceedings. After receiving a notification that a child is at risk of harm, either from the Family Court, a mandatory reporter or a member of the public, FaCS may:

  • report back to the Family Court and/or provide counselling;
  • intervene in the Family Court proceedings; or
  • commence separate care and protection proceedings in NSW.

Commonwealth special welfare jurisdiction

The High Court of Australia has confirmed, however, that the Commonwealth and its federal courts have their own special powers to make laws and decisions about the care and protection of children of married parents where a particular right, duty or responsibility (such as parental responsibility) is involved, or if the child’s issue also involves other Commonwealth heads of power listed in the Constitution (Minister for Immigration and Multicultural and Indigenous Affairs v B [2004] HCA 20). This is referred to as the Commonwealth’s ‘special welfare jurisdiction’. (For more information on this see Hot Topics 81: Child care and protection.)

The welfare jurisdiction of the Commonwealth is a version of the ancient legal doctrine of parens patriae. Parens patriae means ‘parent of his country’. It involves the head of state having special responsibility for people unable to care for themselves. It is often exercised when a ‘special medical procedure’ (one that is major, invasive and irreversible) is proposed for a child. The courts have held that authorisation for a special medical procedure is outside the bounds of parental responsibility (which means that parents cannot provide the necessary consent) and so requires a court order (Re Angela (Special Medical Procedure) [2010] FamCA 98).

Overlapping jurisdiction

Even without the complication of the Commonwealth’s special welfare jurisdiction, there is much overlap between the Commonwealth’s role in organising parenting and other family issues in circumstances of relationship breakdown and state and territory responsibilities for the welfare of children. This is particularly the case where relationship breakdown and family violence or child abuse are all involved in complex family situations.

The jurisdictional situation can result in difficulty for the courts, the parties and the children concerned. For example, a matter may be commenced in the Family Court and then stopped when Children’s Court proceedings for care and protection orders are commenced (because the Family Court is prevented from making parenting orders if there is a state care order outstanding). Also, state court family violence orders can be made invalid to the extent they conflict with Commonwealth family court orders. Other difficult outcomes resulting from the split and overlapping jurisdictions in family matters include delays (possibly involving increased risk of violence or abuse), inconvenience, higher costs, and emotional trauma.