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Judge seeks child protection review

A Family Court judge will request a review of child protection procedures after a matter exposed a critical information gap.

Victorian Judge O’Shannessy made the order late last year after it became apparent that state’s Department of Families, Fairness and Housing (DFFH) had been making child welfare decisions without considering a final order he had made seven months earlier, in February last year.

That earlier order had granted a father sole parental responsibility for three children, and was made on the same day as child protection had been notified of a risk to the children in their father’s care.

In his 16-page Federal Circuit and Family Court of Australia decision published last month, Judge O’Shannessy – who was a barrister in family law for more than 30 years – also ordered the parents be released from the Harman (or Hearne) obligation for purpose of Children’s Court proceedings and any welfare investigation by DFFH.

The judge had presided over the matter – which related to children X (born in 2010), Y (born in 2012) and Z (born in in 2014) –  for more than three years before he made the final order in February last year.

That decision was returned to him in September after each parent applied to have the children placed in their care, following the children’s removal by DFFH and the making of orders by the Children’s Court in “City B”.

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Those Children’s Court orders allowed the father to see the children once a week, and the mother to spend a minimum of six hours a day with the children, with conditions including supervision, counselling, mental health treatment, and drug and alcohol testing.

Judge O’Shannessy said it became apparent that between 15 February 2024 and 10 September 2024, DFFH did not have the reasons for his February 2024 decision.

He said it appeared to be “common ground that a child protection officer charged with the heavy burden and duty of determining children’s welfare in urgent circumstances … has no way of being able to automatically access orders of this court”.

“It is common ground, and I accept, that the process where a child protection officer wants to know about what the relevant court orders are, can request them, or information about them, from the department liaison officer with the court,” he said.

“It is my experience that those officers do a very efficient job of very quickly keeping the court informed, where requests are made, of developments in the child protection sphere. And, vice-versa, provide child protection officers with information about developments in the court.

“There is no automatic way that child protection officers or, indeed, the department are informed of even the existence of the court orders, let alone the content thereof.

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“There is in existence the 2011 protocol, which, in substance, says that the department agrees to take cognisance of orders of this court and this court agrees to take cognisance of the findings of the department. I am not satisfied that that protocol has had much airing recently.

“I am also not satisfied that child protection officers have training or procedures or regulations that would cause them to be inquiring of orders of this court and reasons and evidence behind it.”

Judge O’Shannessy said the matter was complicated by the Harman (or Hearne) obligation, and by non-identification restrictions.

“These orders should not be regarded as impugning the integrity or professionalism of the child protection officers involved at all,” he said.

“This court takes considerable notice of observations of child protection officers and there is built into the Family Law Act mechanisms that are meant to ensure that this court obtains regularly and updated information about any involvement of the department in any children’s lives.

“It troubles me, however, that that may be a one-way street.  It appears to me that it is entirely optional as to whether a child protection officer seeks out and obtains orders of this court, and/or reasons behind those orders, and/or evidence underlying that.”

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Judge O’Shannessy said it appeared the training or regulations in regard to child protection matters could be improved “by it being mandatory to at least consider whether reasons, orders and information thrashed out in this court in an adversarial proceeding would be relevant to determinations”, and ordered accordingly.

In making an order to release the parties from their implied obligation, he allowed the parties to provide DFFH and the Children’s Court with all relevant materials, including affidavits, expert reports, transcripts of proceedings, and decisions and reasons.

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