17 April 2008

Cooperation and coordination:
An evaluation of the Family Court of Australia’s Magellan case-management model

Dr Daryl Higgins, General Manager (Research), Australian Institute of Family Studies

Abstract, slides and audio of presentation

Edited transcript

The following audio presentation is brought to you by the Australian Institute of Family Studies as part of our monthly seminar series in which we showcase national and international research related to the family.

The seminars are designed to promote a forum for discussion and debate. They are open to the public and free of charge.

Seminar facilitated & speaker introduced by Professor Alan Hayes.

Dr Daryl Higgins:

Thank you Alan for that very kind introduction and for the opportunity to be able to talk today about what I think is a very exciting project that the Family Court has undertaken. But I'm particularly delighted to be able to talk about research evaluating it's effectiveness and looking at data to demonstrate the ways in which Magellan, as Alan has indicated, leads to better cooperation and better coordination in what we know to be some of the most difficult and perplexing cases that come to the attention of the Family Court and, as I hope I'll point out to you all today, all of the other agencies and systems that interact in the complex web in which these cases exist.

I'd like to begin today by acknowledging a range of people who contributed to this project in terms of formulating the idea and in terms of assisting right throughout the project, in particular the Family Court for a lot of its time, effort and resources in to assisting with data collection. I'll talk more about some of the methodology in a moment, but it certainly was very much a joint effort in terms of the time and effort that went into this project and particularly from a number of staff here at the Institute who both gave pretty good feedback on the early stages of the evaluation methodology and on the final report. I'm particularly indebted to my colleague Rae Kaspiew who provided some legal advice. My background is in child abuse and neglect, child protection and not the family law aspects. So I did rely very heavily on some critical advice from friends here at the Institute and in particular, of course, the support from the Deputy Director, Matthew Gray and the Director Alan Hayes in terms of taking this project right through to completion.

It's something that certainly does capture the attention of the public generally, but particularly of practitioners who are working in the field and know the complexity that surrounds these cases.

I've just come back from a seminar earlier this week in Adelaide that was convened by the Hawke Institute at the University of South Australia and the focus of that seminar was on shared parental responsibility in Australian family law. As is probably not surprising to most people in this room the major focus of that discussion around shared parenting was the ways in which the recent changes to the Family Law Act do or do not adequately deal with issues of violence and abuse in families. So this presentation that I gave which was very similar to the one that I'm giving today was very pertinent to that to be able to talk about a case management model that does attempt to deal with these issues in a real and substantive way and I'm pleased to be able to report to you on the successes of that project.

It's also particularly pleasing as an institute to be able to talk about a project that really does pull an intersection between family law which, as many of you will know, the Institute was established under the Family Law Act 1975 and the area of child protection which is also a major focus of the Institute's research and our activities through the National Child Protection Clearing House. So it was nice to be able to bridge those two areas of interests in this particular project.

So after having used the word Magellan, Magellan, Magellan - people are maybe wondering what on earth am I talking about and the name obviously comes from the Portuguese explorer and it is about exploring new territory in terms of finding new ways of dealing with this complex problem. It's the name that was given to the case management model and it's a world first initiative designed to improve outcomes for vulnerable children and families in our family law system.

It's an inter-agency collaborative judge led model and all of those things are particularly crucial to being able to have an effective case management approach for these cases where allegations are raised in post-separation parenting matters, of sexual abuse or serious physical abuse.

Based on the work of Thea Brown and others, a consortium of agencies in Victoria got together with the Family Court and developed a pilot project and of course Thea Brown was responsible for leading a team evaluation that initial pilot of 100 cases that commenced in 1998. Based on the success of that pilot the Family Court and the associated agencies decided to continue on and since 2001 it's been progressively rolled out nationally across the various registries.

So the case management pathway within Magellan consists of a team of specialist judges called the Magellan Judge, the Magellan Registrar and mediators from the Family Court's Dispute Resolution Service (they're called family consultants), who are located responsibility for the case from start to finish and that's quite a unique mechanism.

Independent children's lawyers are also appointed based on funding from Legal Aid to represent the interests of children. What's also important and is easily forgotten though is not only are there significant resources and priorities given to these cases by the Family Court, but also from the associated agencies. So we're talking about the provision of uncapped Legal Aid which is a significant contribution from the Attorney-General's Department through the Legal Aid Commissions in each of the states and territories having a focused report provided by the local state or territory Child Protection Department about the investigations that have been undertaken and the concerns that the Child Protection services have or do not have about the children in the matter and reports from other experts about the family and about the children's wellbeing.

All of these significant resources from these associated agencies and services are directed to the case in the early stages, with an aim of resolving the case within six months.

So why was this project needed? It all sounds fairly straightforward and you'd say 'Well of course, why don't we have that?' But part of the reason for understanding why it was that Magellan needed to be set up as a separate and specialist program was because of this intersection between child protection, which is public law and is the responsibility of states and territories, and family law, which is about private disputes in the private sphere and is a commonwealth responsibility. So you can see here a list of some of the key agencies that are involved and intersect in these cases.

When I first started doing the sort of background research for this project, I was almost overwhelmed by the complexity of the responsibilities that come together in this area and in particular, the roles that each of them play and the various types of evidence on which they rely and the decision making processes that they undertake.

This next table - I know it's a little bit complex and I do apologise for the small font - just gives you a snapshot of some of the different agencies and systems that intersect. So you can see the top five ones there are state and territory responsibilities and the bottom one, the family law system which is sort of the underpinning one and the one that we're focusing on most today, is a commonwealth responsibility.

So the cases that we're talking about here, when allocations are raised that involve sexual abuse or serious physical abuse we are talking about criminal matters. We're talking about parents who are not just engaging in something that's unfortunate or that it is an example of poor parenting practice, the allegation is about - in fact - a criminal matter.

So automatically we've got some level of involvement or potential involvement of the police. The reality is though that the police, when dealing with allegations of child abuse and neglect, don't investigate on their own, they work in concert with the state and territory child protection authorities who have responsibility not for prosecuting criminal cases, but for the care and protection of children. So you can see here that that's the focus - okay, it's not any criminal conviction, the focus is protection of children. It's the responsibility of them to work in concert with police and where's there's appropriate evidence for the police, on the basis of usually a joint interview - so there'll be policies in most states and territories for a single interview to be conducted whether jointly or one or other of the parties to have responsibility for interviewing the child. So of course you can imagine the problems with both contaminating evidence and traumatising children if they're being interviewed multiply.

So these kinds of systems exist in order to try and prevent those problems but the reality is of course that often evidence is not at the level where criminal charges can be laid and even when there are - as those of us from a social science background in the area of abuse and neglect and sexual assault know - the absolute difficulties in being able to progress through the legal system and have criminal convictions laid against the perpetrators.

So while this is absolutely a reality that what's alleged is often a criminal matter, the actual on-the-ground practice is usually that the focus is at this level, a child protection application, and yet what we're dealing with here is matters about who the child lives with and how the child spends time with both parents, which is the new nomenclature. Those of you who are used to the old terms of contact and residence and of custody etc. will know that those terms are no longer used but it's about how the child spends time with both of their parents post-separation.

So that's actually a private law dispute and the standard of proof there is on the balance of probabilities, whereas if we go up to the top we can see with police that it's about the criminal standard and the criminal courts taking responsibility for those charges being heard in a criminal court.

So we've got all of these complexities and if you're anything like me, you kind of get a bit overwhelmed and think well when you've got an allegation being raised, how do you actually process all of that and deal with the competing levels of proof, the competing decision making processes and at the same time keeping your eye on what is ultimately the most important outcome and that is the wellbeing of the child or the children involved?

Hence the need for Magellan, an inter-agency system that crosses the bridge, if you like, between those intersecting systems and makes sure that we get a timely investigation and timely data available about what the risks are that children might face in the proposed post-separation parenting arrangements.

So the main focus of the evaluation that I was responsible for conducting was to examine the effectiveness of these case management procedures in responding to these allegations when they're raised in the Family Court. I suppose just as a side line I should mention too that for those of you that are familiar with family law issues know that many parenting matters are also raised in the Federal Magistrate's Court which is a new jurisdiction that's been established alongside the Family Court of Australia in order to try and hear some of the less complex matters. I'll come back at the end to talk about some of the problems with matters starting in the Federal Magistrate's Court and then becoming clear that in fact allegations of this nature are being raised which, in my view and in the view of many people in this area, obviously mean it's not going to be a simple matter, is it? It's going to be a complex matter and so part of the Magellan agreement is about these matters being identified early, that the allegations are made clear that that is in fact what this case amounts to and therefore being referred to the Family Court and not the Federal Magistrate's Court for consideration for inclusion in the Magellan list.

So the aim was to look at how Magellan is being implemented and for those of you with a background in program research, it's important to look not just at outcomes, but to actually look at processes along the way so that we can see what it is that's working and why it is working because we want to make sure that those key elements are maintained and that we don't lose sight of what it is that is unique about this particular project. Part of the mechanism for doing that is to involve the rich detail of perceptions from key stakeholders regarding its effectiveness, its successful features and also some of the barriers that have been, or in fact, remain to a successful implementation and what are the opportunities for improvements.

What's fairly unique about this study is that it actually involves two parts - a quantitative and a qualitative component. The qualitative element I'll talk about first. It involved data from 51 participants, interviews with nine Family Court judges and focus groups with each of the stakeholder groups from the registries that were involved. So that included both the Family Court (registrars, and the Family Court consultants) and the professionals from each of those groups of organisations that I was talking about before that were involved with these allegations.

You can see they're the kinds of questions that I was asking people to focus on but really it was a very general open-ended discussion around what Magellan means for these stakeholders and why they think it's working or not.

I mentioned the methodology being somewhat innovative and based on work that's been previously done here at the Institute Ray Kaspiew for her PhD and subsequently for the methodology that was used in the Allegations of Family Violence Report which was released recently.

I built on the methodology that they employed which was to do with case file review. What was particularly gratifying about this project was that we had a naturally occurring experiment and that was that Magellan has been rolled out progressively across the jurisdictions and the last jurisdiction to come onboard - even though it hasn't come onboard 100 per cent fully - is New South Wales. It was the last to roll out Magellan in its registries.

So we had cases from the same time period and all these cases, by the way, were cases that had finalised, in other words, that a decision had been made or the case had been closed because agreement had reached or the parties had withdrawn prior to 1 July 2006 and that's the date when changes to the legislation came into being with the emphasis on shared parental responsibility. So we didn't want to have any sort of potential contamination from the broader changes to the family law system, even though changes to the case management processes that were particularly introduced in that new legislation such as what's called the LAT, the less adversarial trial, don't fully apply to Magellan. I'll come to some of those nuances in a moment.

But we had cases from the same time period, so from the time that it started to be rolled out in 2003 through to 1 July 2006, from three different registries, Melbourne, Brisbane and Adelaide. And we selected progressively 80 cases from those three registries and 80 cases what I'm calling "Magellan-like" in that in every respect they were dealing with the same kind of issues and had Magellan been operating in New South Wales at the time would have been included in the Magellan list. So an experienced Family Court registrar went through the files and read them and said, based on the information that would have been available to me at the time when this came to me for inclusion in a list for the court's work, would I have included it in Magellan yes or no? Okay, so that was the basis on which we selected these cases.

In terms of the case file data coding, I developed the framework in consultation with the court and others and then provided that finalised coding framework to the experienced Magellan registrar who went through the files in detail, because of course there's privacy reasons and not being a member of the court I'm not able to have access to those files. And then the raw data were supplied to me for analysis.

So I'll talk to you first about the quantitative and then move on quickly to some of the qualitative data.

One thing that I was particularly interested in was the number and type of notifications about child protection issues to the statutory authorities in each of the states and territories. So here in Victoria we're talking about the Department of Human Services and in New South Wales it's DoCS, the Department of Community Services. Each state and territory as you know has its own child welfare department with responsibility for these issues.

What was interesting was that the level of information held on file about the number of notifications and the type of notifications to departments were substantially missing in a number of cases. In more than half of the Magellan cases it was missing, but in nearly all of the Magellan-like cases from New South Wales where Magellan hadn't yet been implemented, data were not available. So this tells you that Magellan is improving in terms of making sure that that data are available. But even still, a lot of data are missing from the files. What that really means is that the data were perhaps made available to the judge at the time of the hearing but in the form of an affidavit and those affidavits have been - subpoenaed material I should say, not affidavits - and the subpoenaed material had been returned to the state and territory child protection authorities.

So that's a problem in terms of being able to do retrospective research and asking about what is on the case file. But in general there was poor information about the type and the level of abuse that was notified to the statutory child protection departments.

This next slide shows some of the key outcomes that we were interested in. One of the major problems that all people involved in this issue are concerned about is the time with which cases take through the court system and this is not just about the time that it takes for the court to be able to process it, but time for each of the assessments that need to be conducted and made available to the court between each of the different hearings. But having said that, one of the problems that parties have raised in the past is that not only are they having to go to a large number of separate court events, but they're being seen by a different judge or a different registrar at each point. What that means in practise is you're having to announce your argument, explain why it is that you allege that the child is no longer safe if they're allowed to overnight unsupervised access with your ex-partner, etc. And you to explain all of that again and again and again to different people. You can obviously understand why that's frustrating, traumatising, and not in the best interests of children and families.

So the idea of this is to try and reduce that, so that there are few accord events and that their matters are being heard before fewer different judicial officers. You can see here a significant difference between the Magellan cases and those ones from New South Wales before Magellan was introduced in terms of the number of court events and the number of judicial officers involved.

There was not a lot of difference in terms of these other ones. Slightly more reports from experts or other professionals available on the files. Interestingly this one here - the lengths of the trial. There's different opinions in terms of whether people thought Magellan should in fact have an impact on the time that it takes for a trial to occur if in fact the matter actually proceeds to that point, because - as you may or may not be aware--the trial is a very end point of a whole legal process. It's when orders cannot be made by consent after a series of interim hearings that it will then be listed for a final hearing. That final hearing will then go for a day, two days, three days, five days, six days, ten days, etc.

So the focus of Magellan isn't explicitly to try and cut down the number of days that it takes for a trial to occur, although some people did expect that it might because of the better quality evidence that's made available etc. So interestingly there was no significant difference in the number of days that matters took when they did go to trial. However, as I'll show in a moment, there is a difference in terms of the number of cases that actually got that far. Cases in Magellan were settling much earlier in the process prior to going to judicial determination.

These last two that I've highlighted are really significant differences. One is that the court receives a specific report from the statutory child protection department and we've called that the Magellan Report. That report is written either by the child protection worker who's done the investigation or more often it's actually mediated by the Child Protection Department's court unit - specialist court unit - who knows the format and what needs to be provided. It talks about what was notified, what investigations were conducted and the concerns about the safety of the child that the Child Protection Department has. It will often refer to the language of the department in terms of substantiations not substantiated etc.  However, there's some difficulties around that that I'll come to in a moment.

So we can see that significantly more often, given that in no case in New South Wales was there a specific report, that we are getting a specific report from the department about their investigations. However, what was somewhat concerning to me was that this was not 100 per cent, in that this was actually part of the deal that Magellan involved a commitment from the states and territories to provide this report. Sometimes it's because the case may in fact have settled prior to the report being provided. So for other reasons people were satisfied that the child was safe or for whatever reason withdrew from the process. But more often than not this was actually accounted for by one jurisdiction in particular not providing these reports and I'll talk more about that in a moment.

In terms of the detail that's on the files, where the department actually investigated the allegations again. This is a really significant issue. You don't want a report from the department that just says we were aware of this allegation and it did not meet our threshold and we did not investigate. So we can see here that because of the Magellan protocols (which rely on the goodwill of the department investigating even though it may not otherwise have met their threshold for investigation or for whatever reason was not investigated), there's a commitment to do so. So again, while it's not 100 per cent, we've got in four-fifths of cases clear evidence the department is investigating. That is not to say that it didn't investigate in the others, it just means that on file there was nothing to show that that investigation occurred. So again, please bear in mind the limits of relying on retrospective case file data.

A really critical issue as I mentioned before is timing - so let's have a focused look at the time that these matters were taking. So from the date when an application was first filed in the Family Court to the date of the case outcome, Magellan-like cases in New South Wales prior to the introduction of Magellan were taking on average 471 days - so that's approximately 15 months, in comparison to 332 days for the Magellan - so just over 10 months.

So we've got four and a half months difference between those two groups so that's really quite a significant reduction and you put yourself in the shoes of a concerned parent and you put yourselves in the shoes of a child who is believed to be at risk: that four and a half months can really make a big difference.

I mentioned before that there was one jurisdiction where there were differences in the way Magellan had been operating and that was Brisbane. And one of the key differences was the lack of the focused report from the statutory child protection department, the Department of Child Safety, to the court. So because of a number of implementation differences that were identified in the qualitative aspects - and I'll talk a bit more about that in a moment - I decided to re-run the analysis excluding Brisbane, just looking at Magellan cases from Adelaide and Melbourne. You can see there the timing is even slightly better so it really does show quite a big difference between Magellan and Magellan-like cases.

This breaks it down again by individual registries, which tells somewhat the same story and somewhat a different story. The different story is that there are registry differences and there's a whole load of factors that can go into that. This data is looking at from the duration from the point at which the allegation is raised, which may in fact be later than when the application is filed. As I indicated before, it's not always clear from the moment the parenting matter is filed in the Family Court that one of the issues at stake is that a parent is alleging that violence has occurred. That might only become apparent let's say when an affidavit is filed by the respondent and the allegations may be alleged in that responding file rather than the initial application. It may also be the result of court practises on the part of the parties' legal representatives who are responsible for filing what's called a Form 4 (that's just the official notification that there are allegations of violence). So there's a whole range of reasons why those allegations may not be known up front at the time of filing. In fact it also may be that the parents weren't aware that the violence started occurring after the matter was first filed in the court, so that's another reason. You can see there the comparison data from the Sydney and Parramatta registries from the date the allegation was raised until the date of the case outcome.

The next slide, and again I'll try and go through these fairly quickly, is just talking about Magellan cases - so no data from New South Wales here. And just saying from the point at which the Magellan registrar included the file or accepted the file into the Magellan list for hearing by a Magellan judge and being case managed by a Magellan judge (because remember that's a critical part of the process as it's not just the judge seeing the matter at the end when it goes to trial; it's about the judge hearing the interim hearings and being involved in the case management process so liaison with child protection authorities etc. all the way through), we can see there that although the outcome - the length of time - is not within the expected timeframe of six months (at least for two of the registries), it's not bad. So on average most cases are falling just outside of the ideal of matters being finalised within six months.

So we can see here that Magellan is certainly improving things from the Family Court's usual case management practises, but there's still some opportunities for improving things in order to meet what's the target.

I've put up this too to give you just a bit of a visual display of how long cases are occurring because when things are not meeting the six month time line - how long is it in fact that they're going for? What we can see for the Magellan cases here, while there's a significant number that are occurring and finalising within the zero to three month period or the three to six month period, there's still quite a number that are falling in this period [greater than 6 months]. But thankfully there's less falling in this period and compared to the Magellan-like cases where there are much more that are taking 12 to 18 months and also particularly here in the 24 to 36 months. Now think about that: they're talking about two to three years here. Previously a number of cases were falling in this group. And we're getting much less Magellan cases that are going right out to those really significant time delays.

I'll just flick through those ones because they're not particularly important.

Oh yes, this is an important one: The proportion of cases that are settling before the matter is listed for trial. Now this can be quite a good outcome if in fact there's good evidence, particularly based on the reports that are made available from the child protection authorities, that the allegations are confirmed and that there's going to be support. So the person who is the alleged perpetrator may withdraw and say: "Right, it's really clear that there are concerns being supported by the child protection authority and I'm going to withdraw." Or the reverse might occur: that a mother was - it's not always the mother but it typically is - that the parent with protective concerns realises that although they genuinely held those beliefs, that they've been investigated by the responsible authority and they don't share those concerns and so they may choose to withdraw as well.

So the number that are settled before listing for trial has substantially increased and, in my view, largely because of the information that's available to them early on the process which is really what Magellan is focused on achieving.

So you can see the ones at the very, very end that are proceeding not just before the matter is listed for trial because of course we have a number that settle after it's listed for trial but before the trial actually commences. Often that can be a significant time where people decide: "Do I really proceed or do I not?" Hopefully the decision is not being made on the basis of money because all of the parties here... We're talking about cases that are supported with Legal Aid. So it's not because they're afraid of the costs to them. But we're having much fewer cases - Magellan cases - proceeding to judicial determination.

We don't have good data on whether final orders are breaking down. This would actually require the commitment from every state and territory and from every Legal Aid department - every Legal Aid Commission - to provide data on the families and we were not able to get that data to be able to talk about that. This was only based on whether it was clear from the particular file that the matter had come back because the final orders were recontested. Similar, in fact exactly similar rates of matters finalising by consent, which is of course the most common outcome in these cases.

So Magellan and Magellan-like cases were similar in every respect in terms of the types of allegations that were being made. What's different is the way that they're being processed by the court, particularly the timeliness, the number of judges and judicial officers that are handling these cases, the evidence that's being put forward in terms of reports from the statutory child protection authorities. So those are some of the key outcome measures that I'm looking at.

A limitation is that I'm not able in this study to report on what families or what children say. So that is a significant limitation. However, this issue was addressed in part by the qualitative data which I'm now going to turn to, because one of the key things that I did ask as well as the 'process' questions of these judges and stakeholders was asking in their view, having had contact with children and families, did they think that Magellan was a better system.

So in terms of the process issues, I wanted to know what people said were the key elements. So yes we've got good empirical data from the case file analysis to show that Magellan is working well - working better - than the previous case management system for these particular kinds of cases, but what is it about Magellan that's working well?

So these were what the stakeholders as a group - my summary of what emerged as the key issues that were raised by them:

So I'm just going to quickly go through now some of the things that I saw emerging from the discussions that I had with the judges and with the stakeholders. You can see there some quotes from the various participants in those interviews and focus groups.

The focus was really about things like restoration of relationships where it was safe to do so; about balancing the importance of speed with time for comprehensive investigations and early resolution of cases prior to a final hearing, although this is not necessarily the aim of Magellan per se but is often a consequence because of the availability of information.

It's about inter-agency collaboration, so the level of cooperation and the seamless approach - remembering back to the slide that I showed about those various agencies and their separate responsibilities. This is about an overarching web that tries to link up those various responsibilities particularly because of the commonwealth and state divide in responsibilities. But it is about having shared understandings and expectations of roles. So one stakeholder said judges in the past didn't display an understanding of the child protection system, but now everyone is much more aware of the system and how it works. It is much more productive if the matter does go to trial. Specialisation of the judge helps with this.

So having that better understanding and one of the key mechanisms for this was having a stakeholder reference group in each registry. So the representatives from the court (so that was the Magellan judge in that registry, the Magellan registrar, members of the Family Court's Dispute Resolution Service so family consultants), the Child Protection Service, the police, Legal Aid etc. all sitting around a table together saying: "We are focused on getting the best outcome for children, ensuring that they're protected and ensuring that their best interests are served." How do we do that in these cases and so that might be knowing that you have a point of contact in the police to say how are you going with your criminal investigations? Have you done the interviews and is the DPP going to be laying charges? Yes, or no? Because we don't want to be proceeding with the Magellan case knowing that there might be a possibility of criminal charges being laid. Obviously you're not going to want to proceed in that environment without that knowledge, so knowing those kinds of things is really important and the stakeholder reference group is about building those relationships between the key players involved.

Not surprisingly, the real issue at the heart of Magellan is about balancing the maintenance of relationship with the overriding aim of ensuring the protection of children - and certainly that's reflected in the most recent changes to the Family Law Act where this is explicitly identified as a best interest principle and an object of the Act. And certainly that is very evident in the processes that are articulated in Magellan protocols. But because of the decisions that are at stake and the consequences either way - the consequence of placing a child in a risky situation where that risk occurs versus the consequence of denying the child the right to know and be known by his or her parent - so the parent against whom the allegations are raised. If the allegations are not founded then that's a serious consequence as well. So how do you make those decisions? That's really where Magellan is at, saying we need to have that available. The most important point I think to raise here is at a simplistic level you could say, "Well, isn't it important for the judge to find that out?" The problem with our - I shouldn't say the problem with - the consequence of our legal system in Australia is that it's not within the capacity of the judge, it's not with the capacity of the Family Court system, to do that investigation. It has no legislative power or capacity to conduct investigations. It can't go out there, interview the child, talk to the teacher at the school, talk to the neighbours to find out what happened. What the judge does is rely on information from those who do have that power and capacity to do it. So that's (a) police - so where it's a criminal matter it should be police that are investigating and (b) the child protection authorities and usually they will work in concert when we're talking about allegations of sexual abuse or serious physical abuse of children.

So the evidence needs to be put before the court from those who have the responsibility - and the skills I might add - to conduct those interviews and those investigations and present their evidence to the court.  But both parties (the parents who having their private family law dispute about the appropriate living arrangements and spending time with arrangements for their children) need to have that information made available so that they can either agree on - or where they can't agree, have it judicially determined - what is in the child's best interests that balances those competing or intersecting priorities.

A particular issue is of course the limits of the court's role. The focus is not about saying has abuse occurred, but rather focusing on future risk: is the child likely to be at risk. That's both a problem and a blessing I suppose in that we know from the social science literature that it's incredibly difficult to prove in an evidentiary sense that maltreatment has occurred. So that doesn't necessarily have to be the major focus of the investigation of the Child Protection Authority. It needs to be about is this child in the professional opinion of the people who are doing the investigation likely to be at risk under certain particular orders. However, that is somewhat different from the legislative responsibility of child protection workers who won't necessarily, according to their state legislation, be being asked to think about if the child was to change from living under the care of this protective parent would they then be at risk under this arrangement. That's why it needs to be really clear in the Magellan protocols what it is the child protection workers and in particular the report writers who are providing the Magellan Report are being asked to provide their evidence in relation to.

I can come back to questions later on around the particular legal constraints around this and the standard of proof and there's quite a bit of detail about that in the report if you want to hear some more about that.

I mentioned before about the importance of judge management. And having judges and in fact the pinnacle, if you like, of the court system being involved with the day-to-day management of these cases was seen by participants as really a crucial thing. So it wasn't judges flying in at the end not knowing anything about these families, not knowing anything about the allegations that have been raised and not knowing anything about the various steps that have been taken to produce evidence and just hearing things at the end. No, this is about judges being involved right from the beginning and really taking a very personal interest in these families, which then has the consequence that although families may not always be happy with the outcome (if you've got a private dispute between two people, it's almost inevitable that one is going to feel not as happy with the outcome, although I would hope that given the quality of evidence that's available, hopefully it's about their fears being assuaged rather than feeling as though they've been done over in this system); but even where people's expectations when they were going into this private law dispute were having outcome x, even if that does not occur, hopefully they feel as though they've been given the best chance of having a fair deal because of the priority that's been given to their case in terms of time lines, because of the evidence that's been able to be provided from the focused reports from the Family Court and particularly from judges being involved with cases all the way through, so that sense of procedural fairness.

I think I've already said enough about the importance of the relationship with the Child Protection Department. But that's not just me saying that, that was really what participants who were in the focus groups were saying was crucially important to making Magellan work. It really is about the divide - and crossing that chasm. And the chasm is not there because of bad will, if you like, between child protection departments and the Family Court, but about the legislative divide that exists. And it's about trying to find new and innovative ways of crossing that gap and overcoming what is a real constitutional dilemma in Australia because of the separation of powers from states and territories who are responsible for child protection and the commonwealth which is responsible for family law issues.

So I've talked about the importance of the Magellan Report, although it's interesting to hear the judge talking about how early on there were some difficulties with this. Basically, it was about that need for good communication: to say what is it we need in these reports. "Why is it important? Oh, okay, that's what you're needing. You're not asking me to reinvent the wheel. You're just asking me to report on what in fact I've done." So having that communication I think facilitates access to these reports being done in an appropriate way and in a timely way.

So to sum up, some of the key messages were that Magellan matters were believed to be shorter often resolving without judicial determination. According to the participants that I interviewed, Magellan was seen to be delivering better outcomes for children families. Critical to that was the type of case management procedures and the importance that is placed on the Magellan project by the courts in the sense of fairness - procedural fairness - that that gives to parties and as I've indicated the cooperation with the statutory Child Protection Department was really seen as being critical.

Now I hope I'm not sounding like Pollyanna in terms of the success. There were things that were identified by participants as opportunities for improvements. I mentioned right at the beginning that we have two courts that parties are able to have matters listed in. And so where things are inappropriately filed in the Federal Magistrate's Court where there are - or there come to be - allegations raised of sexual abuse or serious physical abuse, there need to be good processes for streamlining transfer of those cases in a timely way. A number of participants talked about problems because of matters staying in a Federal Magistrate's Court list, getting to the point of being heard and then realising that "Oh, we haven't got all the information we need. There's all of these competing things so let's shove it off to the Magellan list." By that time, a lot of time has elapsed and some of the success features of Magellan are not able to operate, which is really about injecting resources in at the earliest possible stages.

I've already highlighted some issues around the need for greater uniformity across registries, overcoming some poor isolated cases of communication and really the mechanism for doing that and what is working is the Magellan stakeholder reference groups in each of the registries and obviously ensuring adequate resources. That's not a small footnote but an important issue.

Participants also gave some suggestions regarding some more mechanical issues that the court needs to be aware of.

So some all overall conclusions: the registry differences that I observed in the case file analysis were supported by the results of the stakeholders' perceptions from the qualitative study about the lack of national consistency, but overall that the court's internal processes do seem to be working with fewer court events, fewer judicial officers and more frequent early settlements and in particular the importance of time critical responses.

Many of you will have already grabbed a copy of the Report and copies are available on the back but it's also published on the Institute's website (www.aifs.gov.au/institute/pubs/magellan/). So please, if it's of use to you and your colleagues, please pass it on. Thank you very much for your attention.

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