Child Welfare: Who has responsibility?

Throughout the family law process, especially as seen in the media, there can be a focus on the monetary aspects of a separation: Who gets the house? Who gets the car? How are the assets split? While there is of course a focus on the custody of children, some have said that the system is not set up to protect children’s welfare.

This is the argument that was put forward by Tessa Akerman in an article in The Australian recently (link to article below). She argues that because of the unique nature of family law in Australia, whereby federal legislation governs while State Governments retain child welfare responsibility, children end up caught between the two systems and their welfare put at risk. This is generally caused by the lack of clarity between state and federal legislation as to where responsibility lies, as well as a lack of communication between welfare agencies and the Family Court.

Using the combined knowledge and expertise of former Family Court judges as well as academics, Akerman suggests implementing a national child protection network that would ensure that children across Australia would be protected equally and that the Family Court would have a clearer understanding of their responsibility compared to that of a child welfare agency. Other academics have not called for such a radical overhaul of the system however note that the current system is inadequate.

It is unclear what form change should take and even whether there is an appetite for such change within State and Federal Governments. A promising development has recently occurred in New South Wales where Premier Gladys Berejiklian has announced an inquiry into the death of a five-year old boy at Moama who was killed by his mother. It has been suggested that this death could have been avoided with a greater intervention by child welfare agencies. As with many high stress environments, including going through family law proceedings, it has been implied that in this case the mother had an undiagnosed mental health condition which played a significant role in the death with the court recommending a psychiatric assessment. While extraordinarily tragic, it provides an opportunity for the government to reflect and consider whether the current child protection framework is working, especially in relation to matters involving mental health issues.

Regardless of whether change does occur, there is universal agreement from former Judges and academics that the current framework is not serving children as well as possible and providing undesirable outcomes.


Tessa Ackerman’s article –


The information posted on this blog represents our opinion and should not be taken as legal advice.